Lawyer's BookLawyer's Book
by Yves Barbero
The Death of Common Sense: How Law is Suffocating America by Philip K. Howard. Random House. 204 pages. Hardback. $12.00 (History Book Club).
A clever book, and largely accurate. In it, Howard suggests that in our attempt to make government fair, we are defeating the whole purpose of government, that is, that it should accomplish for the community, what no individual can on his own, and what no commercial enterprise is willing to do.
The author goes on to say that we are being choked by procedural regulations that make little or no sense. We drive good people from government because their hands are so tied in regulations that they cannot make decisions. We are left with listless bureaucrats who have little interest in anything but their careers. Howard suggests that this procudeural overkill has come about because of our desire to minimize or eliminate the corruption that might come with officials being allowed to make decisions, that we are so concerned with our ever-expanding "rights" that no one is looking at the costs, both social and fiscal, that implementation implies, and the fact that no one really trusts government.
Almost anyone can give examples of being tied in knots by government from personal contact, but his examples are of the "macro" proportions that most people rarely see with their own eyes. For these examples alone, the book is well worth the read.
He talks, for instance, of a large chemical plant that installed 31 million dollars worth of scrubbers on their chimneys when the offending chemicals were mostly coming through nozzles, and that could be cured for a few thousand dollars. But regulations required that the scrubbers be installed despite the low emissions of chimneys. There's the example of the outdoor toilets that didn't get installed in New York City because disabled groups complained that they weren't being fairly accommodated (it proved too difficult to accommodate wheelchairs, so no one got the use of these innovative toilets).
And most poignantly, there's the example of the Sisters of Mercy (Mother Teresa's group) who didn't get to renovate a couple of buildings because NYC required a $100,000 elevator that they couldn't afford, and wouldn't use anyway because of the simplicity of their existence.
His solution is that we "return" responsibility to the professionals who used to make these decisions, that government regulations be "goals" rather than "procedures." He thinks that the occasional corruption, or human error, is an acceptable risk. He also suggests that all of us insisting on our "rights" and on government being absolutely "neutral" is actually making it impossible for government to operate. Not only that, but it chases away business by ethical firms that can't really compete with those firms whose main stock in trade is the ability to handle bureaucratic red tape, and not necessarily the work required.
Government by "law" rather than "men" seems counter-productive in many ways, he suggests. We've simply gone too far and we've squeaked to a dead end.
How can anyone disagree? I once got a small government contract by being the low-bidder. Only later did I realize that the paperwork took twice as long as the job, and I had to wait months to get paid. No wonder I was low-bidder. I never bid again, although the job was very pleasant (teaching computer skills to civil servants).
On an earlier occasion, I lost my social security card (I needed it to apply for a job). I went to the local office, and was asked to supply proof of citizenship (I'm a naturalized citizen). I dutifully gave the clerk my DD214 (The U.S. Army form that said I was a citizen, gave my social security number, and further stated that I was honorably discharged), and was told that only my (long lost) citizenship papers would do. I pointed out that I had been paying my social security taxes for three decades, and that there was some immediacy to my need.
They were very nice about it, even offering to write a letter saying I had a particular social security number. But their hands were tied. No card.
There's some irony about one government agency not accepting the documentation of another, especially a document issued by the military since it is charged with the defense of this great nation. Anyway, it took me a year to even get an appointment with the immigration people and then get the right paperwork together to get my social security card. I didn't get the job I wanted, and had to go into business for myself to eat regularly (in this instance, I'm rather grateful for the government inertness. Working for yourself beats a regular job by miles).
Something, however, bothered me about the book. There was something missing. The other side of the argument. I'd almost forgotten that this was a lawyer's book, it's so interesting. Obviously, he makes many good points, and I'd like to see many of his ideas implemented. As a practicing lawyer with laudable civic achievements in New York City, he certainly knows what many of the problems are.
For seven years, I was a construction worker, helping build and maintain elevators in the San Francisco Bay Area. We had our dealings with government, not all of them pleasant, but on the whole, businesslike. Howard talks about the tons of regulations no one understands. But for us, it was a building code manual about the size of a Stephen King novel, written in stilted English, to be sure, rather than the gothic prose of his thrillers, but manageable by one of our elevator mechanics with a modest education.
I presume these tons of regulations are similarly compartmentalized for the various civil servants and people who use them.
I don't mind trusting Howard's ideal "professional," nevertheless, the professional can't just go by judgement, he needs the guidance of previous experience. Rather than just being "goals," perhaps, like building codes, regulations should reflect the accumulated experience of a particular area.
As an example, experience has shown that the trap door on top of elevators was a hazard to passengers since many were tempted to escape the confines of an elevator when stuck. It's much safer for them to be stuck in an unmoving car than to be exposed to the hazards of an elevator shaft. Two or three elevator mechanics are killed each year in shafts, and they know what they're doing. Code requires a lock on these doors that can only be opened by service personnel who need the access. This simple example is one of hundreds that is reflected in a good regulation. Instinctively, the human being wants to flee a confining situation. Realistically, it is often better to stay put.
Are code books perfect? Hardly. A few years back, a tiny boy, a Vietnamese refugee, was killed in one of the flea bag hotels in downtown San Francisco. He was trapped between the hallway doors and the elevator doors of an old elevator, and was crushed when the car began moving. There had always been codes about the clearance between doors, but they didn't anticipate the global events that would move this tiny child halfway around the world. The code was corrected.
Howard would probably argue that I only prove his point that experience rather than wild speculation about effects is the only way to make policy. But I'm saying that while this is clearly true, some written code, based on experience, is essential to give to his professionals parameters. Each generation doesn't have to reinvent the wheel.
When I was in the aforementioned military, I was an aircraft mechanic, and did a lot of flying. I noticed that in military aircraft, passenger seats faced towards the back of the plane. This is safer, I was told. So why not in civilian airliners? The public wouldn't buy it. Dogs love sticking their heads out of car windows and imagine they're running at sixty-five miles an hour. People face front in airliners and think they have control.
Howard, from his perspective, identifies a real problem, and offers a fix. I see some problems with his "fix" from my "micro" perspective based on my experience. His tolerance of some corruption and some human error seems to ignore the collapsed buildings and fire traps of old (see especially The Triangle Fire by Leon Stein, 1962, New York, a classic about the 1911 fire that killed 146 immigrant workers, mostly young women and girls, and is credited with modern building codes, that have saved millions), and the massive corruptions of the same era.
I share his concern that the newly expanded "rights" given to all sorts of groups cheapens the concept of "rights." Still, something is needed. We don't want to go back to segregation, real or de facto, or ads that read "no Irish need apply," or sex-based exclusions from the work place.
It's also a fact that neither Howard or I can see every nook and cranny from our individual perches. We can see fully only what professionally concerns us. Some regulation is needed even if neither of us see any real point to them. And some practices, such as the seating arrangement of airliners have more to do with marketing psychology, than physical safety. There's no changing them.
The Death of Common Sense has real value. The danger is that it will be used as an excuse by the right-wing to dismantle needed regulation, and not merely procedural abuses. I may want the Food and Drug Administration to streamline their system for evaluating drugs, but I want my drugs to be reasonably safe. And I certainly want airplanes inspected, and food checked by a competent government body, and not by the folks who stand to profit from cutting corners. I may distrust government (a healthy outlook), but the guy who checks the airplane I board has the proper training, knows the rules, and can be trusted if given the trust and a well thought out rule book chock full of the experiences and findings of his fellows.
It is human nature to want to do a good job.
Daphne Fautin, marine biologists adds...
The book you reviewed reminds me a bit of the Marine Aquarium Conference of North America at which both Bob and I spoke this past week-end. Those folks and folks like them are taking from the wild marine critters, especially those from coral reefs, at an entirely unsustainable level in order to have the pleasure of coral reefs in their living rooms. One enlightened chap admitted to some guilt about his, but rationalized that 1.) he toured kids through his living room and so gave them an appreciation of the natural world [and, more likely, a desire for their own reefs!], and 2.) it is clear we are destroying ourselves, but the world is so resilient that something will persist after we disappear, taking most of the biota with us [so we might as well enjoy it by ripping it off since it is doomed anyway, is the logical consequence of this thinking]. Some folks are successfully propagating organisms in tanks, and that is what I encouraged them to do -- exclusively.
Yves Barbero is currently a computer consultant. He has been an elevator constructor, and aircraft mechanic, and a newspaper reporter, among other things.
© Copyright 1996 by Yves Barbero
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