Philip Howard
Philip Howard
The Death of Common Sense: How Law is Suffocating America
ISBN: 0446672289
The Death of Common Sense
Mr. Howard discussed his recent book, The Death of Common Sense: How Law is Suffocating America, published by Random House, which describes a plethora of nonsensical laws and regulations that are overwhelming American society. He emphasized that the idea of "rights" as we define it today, in reference to such groups as the physically challenged, makes no sense in a democracy as a way of harmonizing competing interests and that such notions of "rights" were nonexistent until very recently in U.S. history.
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The Death of Common Sense
Program Air Date: February 12, 1995

BRIAN LAMB, HOST: Philip Howard, author of The Death of Common Sense, when was the first time you thought this might be a book?
PHILIP HOWARD (Author, "The Death of Common Sense: How Law Is Suffocating America"): It was about three and a half years ago when I was walking around on the Lower East Side in Manhattan. I was talking to an older lady in public housing, and she was telling me a story.
LAMB: What was the story?
HOWARD: Well, the story was, she was describing her problems in getting her refrigerator fixed in public housing. And what she said was that she had called up a bureaucrat who said, "No, I don't have responsibility. Go to someone else," and she went to the second. Then she went to the third bureaucrat, who then referred her back to the first bureaucrat. Her face, as she was telling the story, twisted in frustration. She was humiliated by this experience of no one really honestly responding to her problem. The interesting thing to me in the story was I had spent the morning with the CEO of a major company describing his effort to work on a jobs program with the government, and as he was telling the story he couldn't even get them to respond to the issues and the questions, and as he told the story, his face had twisted in frustration. He got so excited about it. That afternoon, as the lady was telling me the story, I realized that she and this CEO were basically the same person and that something had gone wrong. It wasn't rich versus poor; it wasn't whether government had a role or not; it was something about the way government worked.
LAMB: Do you come to this with a political label? I mean, are you a Republican or a Democrat?
HOWARD: I'm a registered Democrat, but I don't go to bed dreaming about it.
LAMB: Are you a liberal or a conservative?
HOWARD: I always thought I was liberal but I consider myself pretty much in the center, and I tried to make the book interdenominational, if you will, and both sides are responding to it, so I think it's working.
LAMB: At one point in the book you refer to "progressive." You use that word "progressive." Would that be you?
HOWARD: I mean that in a historical sense. I mean that in a turn-of-the-century, historical sense of the word.
LAMB: Three and a half years ago what were you doing for a living?
HOWARD: What I do now, which is work at a corporate law firm that I started.
LAMB: What kind of law?
HOWARD: We do special projects for large business institutions.
LAMB: This book is $18 and 202 pages.
HOWARD: Right.
LAMB: I just picked this up. This is the cover of U.S. News, and it's The Death of Common Sense in America. You're on all the television networks. What is it about this book that's gotten people's interest?
HOWARD: I think what I tried to do is create a vocabulary for people to respond to public problems that they didn't have. Now when people confront government, they're told, "Well, the rule requires this so you have to do it even though everyone knows it makes no sense." Or commonly in America someone says, "Give me my rights." We cringe. What do we do about someone's rights? What I explained in the book is those ideas of law didn't even exist 35 years ago. The new version of rights are not any kind of rights that our founders fought for and created a government over, and the idea that law should be an instruction manual telling us exactly how high our railings should be and how many square feet the nursery school is, is not anything that existed in our country when I was growing up. It's a brand new invention, and it doesn't work.
LAMB: Your father was a minister.
LAMB: Where?
HOWARD: Eastern Kentucky mainly.
LAMB: Where did you grow up?
HOWARD: I started out in Tifton, Ga., a little Southern town north of the Florida border and moved to eastern Kentucky when I was 7.
LAMB: What town in eastern Kentucky?
HOWARD: Whitesburg, Ky., a coal-mining town of about 1,300 initially and then Mount Sterling, Ky., which is a farm town on the border of the mountains and the bluegrass.
LAMB: What kind of minister? Is he still alive, by the way?
HOWARD: Yes, he's still alive. He just turned 84.
LAMB: Where does he live?
HOWARD: He lives in Knoxville, Tenn., now.
LAMB: And what kind of a minister was he?
HOWARD: He was a Presbyterian minister.
LAMB: What impact did that have on your life?
LAMB: How?
HOWARD: I had a very privileged upbringing. I spent my childhood going around to work camps in southern Georgia, coal mines, trailing along my father as he did social work. That was, I think, important in developing my values structures, and I think it helps me understand people of different economic backgrounds and different goals perhaps better than most people.
LAMB: What year were you born?
HOWARD: In '48, so growing up in the South in the 1950s is a little bit like growing up in another century.
LAMB: Why?
HOWARD: Well, there wasn't much money. Everybody still talked about their relatives in the Civil War. That's how they got their character. It was very different than it is now.
LAMB: How long have you lived in New York City?
HOWARD: I moved to New York initially after college in 1970, and then I went to law school and came back in '74, so I've lived in New York now for twenty-some years.
LAMB: Did you think when you wrote this book you'd get this kind of attention?
HOWARD: That was my hope.
LAMB: But did you think you would?
HOWARD: I didn't have any expectation of that. I had identified a problem. I had a question to answer, which was why everyone hated government and why it can never do anything. The homeless problem has been with us for 15 years virtually without any effective response, and while it's a complex problem, it's not as complicated as we've made it. I didn't understand why, for example, someone like Mother Theresa, who tried to build a homeless shelter in the Bronx, why a system of law would require her to put in an elevator she would never use, causing her to abandon the project.
LAMB: Have you had any discussions with people who say this is a bunch of hooey, in other words, somebody taking you on, on your basic theory?
HOWARD: Not really, no. There are interest groups who will not like this book. I mean everyone who has gotten rights in the last few decades, like the disabled or special education -- open-ended mandates -- they won't like the book. Bureaucrats won't like the book because what I talk about is completely inconsistent with the way they live their lives, and lawyers may not like the book.
LAMB: Toilets on the street in New York City.
HOWARD: A classic example of why the technique of rights are nothing that a democracy should use to try to balance competing interests. If you pass a law, which the disabled laws are, giving the disabled an absolute right to equal access to any public facility, what it means is that they have essentially a credit card to force anybody to do anything that doesn't comport with this open-ended mandate. So when New York wanted to put in public toilets, which are desperately needed in New York City, and they found a unit which was small enough to fit on the crowded sidewalks, the disabled came in and said, "Sorry, wheelchairs don't fit in them; therefore, you can't do them." New York City still has no public toilets because 0.2 percent, or whatever it is, of the population that are in wheelchairs couldn't use them. The question is not whether they were accommodated or not; the question -- for example, people in wheelchairs could have been accommodated in nearby buildings or in restaurants or the like. It's just a question of their desire to be mainstreamed and do everything exactly the same way as everyone else, which is, by the way, a perfectly reasonable goal as a kind of a general proposition, but when you make it a right, you're never able to balance the interests when it doesn't make sense, and it didn't make sense to ban public toilets for 98.2, whatever it is, 99.8 percent of the population.
LAMB: Was there an experiment, though?
HOWARD: Yes, there was an experiment for a few months in which they compromised by having one small toilet next to one disabled toilet. This could only be on a very wide sidewalk, and the disabled toilets, at the end of the experiment, had been virtually unused because the fact of the matter is there are very few people in wheelchairs compared to the rest of the population.
LAMB: You also tell a story about a man in Rhode Island who was injured in 1986.
HOWARD: Right. I mean, what happens with people when they have a right -- or some people -- is that they become zealous, and this man has brought over 2,000 lawsuits. He brought a lawsuit to stop a school dance where his daughter went because he couldn't get into the facility because it didn't have the appropriate ramps, and so they had to move where the dance was. But what's happened as a result, the institutions of our country, things like schools, have been so weighed down by legal requirements, disabled laws only being perhaps the smallest of them, that things like elementary schools rebuilding toilets and showers that are perfectly functional for people in wheelchairs who may not even exist in that age group in that town, it just doesn't make sense.
LAMB: Would you feel differently, do you think, if you had to ride around in a wheelchair all day?
HOWARD: No, I would not -- at least I hope I would not. I never have, so I can't . . .
LAMB: Have you ever talked to anybody?
HOWARD: Sure, I have friends in wheelchairs.
LAMB: And do they agree with you?
HOWARD: No, they don't. The plight of someone in a wheelchair is a plight of daily indignities as you try to get from place to place, where a 6-inch curb might as well be a high wall, and for that reason I think having disabled access laws is a very good thing. My gripe is not with regulations as such. It's how we do it. What's happened in America is that we've created these techniques of regulation that make it so that Americans are being driven crazy. Look at the last election, across the board, rights only being one of those new techniques. Again, democracy is not about rights. Rights are freedoms in the Bill of Rights. Democracy is about compromise, and when government hands out an open-ended right to someone, anyone, it loses its capacity to compromise or balance the situation as it occurs.
LAMB: In the back you say you use pseudonyms, Jane O'Reilly and John Nesbit. Why did you pick those two names and what do they represent?
HOWARD: The names are completely arbitrary, and they didn't represent anything. It was just people who didn't want to use their names.
LAMB: And what were the stories behind the two?
HOWARD: One's a rights story, and one is a nursery-school story. In Boston the regulations for nursery schools require this enormous checklist of items that inspectors will come in periodically and make sure you have, for example, a separate set of clothing for every child in case they soil their clothing. That happens to take up a lot of room for the 30 kids in this particular nursery school, and so the person who runs the nursery school -- "Why can't I just keep four or five sets on hand, and then the parents can return them?" She got a citation for having -- I forget what the rule was that it broke -- but for breaking the rule because there was a toy refrigerator that wasn't bolted to the wall. Now, this toy refrigerator had never caused a problem, but the inspectors, citing some rule about unstable toys or something, had given her a ticket for that. Another time she got a ticket because the Joy dishwashing liquid that was on the counter of the kitchen to use for bubble blowing was too close to the edge, and a child might have reached for it. Now, you can argue, I suppose, the other side of each of those points, but they're not very important to the nursery school. What's important for the nursery school from the government's standpoint is, is it a clean, professional, loving place that nurtures the children? Those, however, are human judgments. No one goes to her nursery school and checks on how professional and loving it is. What they do is they give tickets for whether the toy refrigerator is bolted to the wall or not. That kind of regulation doesn't make sense. OSHA, which is the federal workers safety law, is like a parody of inept government because what it is, is 4,000 rules of things that a rule writer can make objective, like how high the railing is, putting a poisonous sign above sand or anything else that conceivably might be poisonous, even though they're not 99 percent of the time. They go around giving tickets. "There's an oil rag. You get a ticket because you had an oil rag." Or, "You didn't fill out this form properly. You get a ticket." Of course, none of those things have much, if anything, to do with safety, and, in fact, after 20 years and billions of dollars spent by industry, OSHA has had no effect, or almost no effect, on worker safety. What has an effect on worker safety are human attitudes, training, supervision, management -- things you can't write down in a rule. In one brick factory I visited in Pennsylvania, they had lived through OSHA for 18 years or so, and then they got a new manager and he decided the accidents were too high and they cost too much money. He started out giving out prizes, like tool kits, at the end of the quarter if a worker didn't have a lost workday. The accident rate declined by 75 percent in one year because they were using human incentives and looking at the human factor for safety, not all these objective factors.
LAMB: You say that OSHA, the Occupational Safety and Health Administration, has had no impact?
HOWARD: No impact.
LAMB: How do you know?
HOWARD: People argue that, and you can argue it either way, but a Brookings study, for example -- there was a wonderful book called Rights at Work that came out a couple of years ago by Brookings, and what you do is you compare accident rates and death rates, and the accident rates and the death rates are somewhat different than they were 20 years ago. One's up a little and one's down a little, but basically the numbers are the same.
LAMB: Who wrote the Occupational Health and Safety Act?
HOWARD: Congress wrote the act.
LAMB: What party or what politician, what side?
HOWARD: Much of the federal regulation came out of the Great Society, including worker safety laws, and there is a story about worker safety laws which I'm not sure is in the book or not actually. It was at one point. But most people, most Americans -- and I would argue very strongly in favor of worker safely laws. All the sweat shops, the horrible child labor abuses of the turn of the century, the Lincoln Steffens-exposed abuses, occurred because there were no laws, and so everyone quickly slipped down to the level of the greediest manufacturer, because whoever the mean-spirited person was, was working people literally to death, was getting a competitive advantage. So everybody else, even if they were perfectly nice people, sank down to that level. So I believe that you need regulation for worker safety. The question is how you do it, and the idea is this kind of version of central planning. It's as if Norman Rockwell were put in one of these office buildings and they scratch their heads and they say, "Gee, what would a perfect factory look like? You know, railings should be 42 inches high, and let's make that a standard." They go through this time after time. Whenever there's an accident, they say, "Let's write another rule for that one." So, they have these 4,000 rules. People don't even know the rules. I mean, there are too many to know. The inspectors don't know the rules. No one complies with the rules because there are too many to comply with. They now have warnings for over 600,000 products. I saw the other day on a bulletin board of a museum an OSHA warning prominently displayed on the bulletin board -- there used to be postcards and pictures of kids and stuff -- against eating the toner of the photocopier. Now, that is something those people needed. It also had remedies for what you do if you do eat the toner of the photocopier. Now, we don't need to be warned against eating the toner of the photocopier. I mean, first of all, there are more important things to warn against or it's more important just to live life, and yet we've got this absurd system of worker safety that doesn't really help.
LAMB: What's the John Nesbit story?
HOWARD: The Nesbit story is more of a rights story; it's a combination story. John Nesbit was an assistant United States attorney . . .
LAMB: Not his real name.
HOWARD: Not his real name, but the person was -- whose boss had a terrible secretary, and he couldn't get rid of her because it's a federal employee. There's this whole bureaucracy about federal employees. His boss couldn't take her anymore so he kicked her down to John Nesbit and his colleague. She never showed up for work on time, did a terrible job, had a terrible attitude. They did what you have to do under the rules of the bureaucracy for federal employees and started making a log of all the things she did wrong. Finally, they had a complaint -- she didn't show up for work for a week or something. One thing after another, after 18 months they finally got the most severe sanction they could, which was a serious downgrade, which meant that she didn't get as big a raise as she otherwise would have gotten. Otherwise, no effect. So they're working along. Another person in the office, a woman lawyer, has an emergency hearing coming up, and this secretary is given the job of typing it up. The woman comes by. She isn't doing her work, she's talking on the telephone, and this paper's due in court right away. So she says, "Please hurry. This is due." Doesn't do anything. Meanwhile, the secretary comes back into the office, says to the woman lawyer, "If you ever talk to me that way again, I'm going to kick your ass." The woman lawyer, outraged, immediately went to the supervisor and said, "That person should be fired." One thing led to another. That was impossible to do, because she had so many built-in incrustations of rights and rules. She hired a lawyer, sued for discrimination because -- the secretary -- because they were trying to relieve her of her job. Eventually they resolved it by putting her on suspension for nine months on full pay, and, of course, the joke around the office was misconduct gets you a paid vacation. Somebody else was interviewing for a job; they ran into her at another office where she was working at another job while getting full pay from the federal government. What the story illustrates, among other things, is that in human relations, you can't rigidify them, if there is such a word, to such an extent that people are no longer responsible. What's happened throughout government is that we have a system basically designed to avoid responsibility.
LAMB: Go back to three and a half years ago where you say -- was it the Lower East Side you ran into this woman?
HOWARD: Right.
LAMB: Did you know this woman on the street?
LAMB: And why did you have the contact?
HOWARD: I was working in a local political campaign.
LAMB: What kind of politics?
HOWARD: It was a city council race. It was a local race.
LAMB: And you were playing what role?
HOWARD: I was a candidate for this part-time job.
LAMB: Of city council.
LAMB: In New York City.
HOWARD: Yes. Well, what had happened is they had redone the city council, and they said, "We want citizens to come out and occupy this post. We're going to make it more important and make it a serious job." So, I thought as a good citizen I would go and try to do it.
LAMB: Did you win?
HOWARD: I did not.
LAMB: What party were you running on?
HOWARD: Democratic. It was the only party in the district.
LAMB: Was this for the Manhattan Borough?
HOWARD: No, it was just for a small section of Lower Manhattan.
LAMB: Why did you lose?
HOWARD: You know, they didn't vote for me as much as they voted for the other people.
LAMB: And three and a half years ago you said, "I want to write a book"?
HOWARD: No, well, I started looking into the question. I said, "What is it that's wrong? Why are things not working?"
LAMB: How did you get to the first step? Here is Random House, 202 pages later.
HOWARD: It took me a year and a half to come up with the basic idea, and I wrote an essay. I handed it around to a few people. I gave it to Arthur Schlesinger, I gave it to a few other smart people who I know, and they told me they thought I was onto something. What I was saying in this little essay was very radical. I was saying, among other things, that law shouldn't be precise, that law had to leave room for people to use their judgment, and if it didn't leave room for people to use their judgment, it just became a form of central planning and that we had lost sight of the way all our legal institutions had worked for centuries. I mean, the Constitution is a set of general principles which we adjust as times change and our mores changes, and the common law, which operates on principles like the "reasonable person" standard, always leaves room to adjust for the circumstances.
LAMB: So you did an essay, you pass it off to Arthur Schlesinger, and then what?
HOWARD: And then some people heard about it and picked up on it, and before I knew it, I was in Harry Evans's office at Random House, and he was saying, "You ought to write a book about this."
LAMB: You say "some people." Are these connections you have?
HOWARD: They were friends. I was talking about it among friends.
LAMB: So you're in Harry Evans's office. He's the top guy at Random House, and how does he . . .
HOWARD: He says, "It sounds like a good book. We should make a book out of it." And so I say, "Oh, a great idea. I figured it out. I'm sure it'll only take me six months of part-time work to do this."
LAMB: Did you know him before?
LAMB: And did they give you a big advance?
HOWARD: They gave me an advance. It paid for more than the first year of research help, but it's not a way to make a living.
LAMB: As you know, you've got lots of anecdotes in here. What would you say is the main source of your anecdotes?
HOWARD: It's about half and half newspapers and magazines and interviews. There's just so many sort of wonderful stories, and I have three times as many stories as I had in the book, but one of the principal points of the book is the idea that law can't be too precise. If you take environmental law, for example, there's a story of the Amoco refinery in Virginia, where Amoco spent $31 million to catch the benzine at the smokestack, but there was almost no benzine at that smokestack. It turned out all the benzine was escaping at the loading dock, but there's no rule for catching benzine at the loading dock, so it didn't get caught and Amoco spent $31 million. That's the story of American law. If you write something in advance, some rule writer, it will never fit the circumstance, just as if you swerve your car and you cause an accident, what happens is that you're usually liable. If you swerve your car because you're avoiding a child, you shouldn't be liable. Words on a page can't take those circumstances into account. Life is too complex, and things like worker safety are even more so. Environmental laws are so complicated that our effort to lay it all out in advance in rules and regulations has created the nightmare that's driving everyone crazy.
LAMB: This is your dedication page. "Olivia, Charlotte, Lily, and Alexander and for Alexandra." Who are they?
HOWARD: The first four are children, and the last one is spouse.
LAMB: And how old are the children?
HOWARD: The children are, in descending order, 16, 12, 8 and 8. And the spouse is 102.
LAMB: She'll love that. What do they think of this book and all the publicity you're getting?
HOWARD: I think they're pleased by it. They saw me slaving away for however long it took, for several years, to write it, so they're pleased, but they sort of take life in stride. I think they don't think it's the biggest deal in the world.
LAMB: When did you decide you had a 202-page book instead of a 500-page book?
HOWARD: Oh, I knew I never had a 500-page book. The question is whether I would get the 200-page book out. I actually completely scrapped what I had written after I had completely written most of it and started all over again.
LAMB: When did you write it? I mean, if you're a lawyer, you had to practice law.
HOWARD: Right. I took weekends, nights, and then I took time off. Early in 1994, I basically took two and a half months off where I did nothing but write day and night.
LAMB: Did you get on the phone to these people yourself and interview them?
HOWARD: Sometimes, and I had one full-time researcher. They varied, but one full-time researcher for over two years and several part-time researchers. I had wonderful, two intellectual historians at Claremont that were great . . .
LAMB: In California.
HOWARD: In California, who were very important in getting historical and philosophical sources for me.
LAMB: What's the Claremont connection?
HOWARD: A friend of a friend.
LAMB: Students out there or are they professors?
HOWARD: Ph.D. candidates.
LAMB: So you were working with folks on the West Coast; you're practicing law in Manhattan.
HOWARD: Right. Then I had a full-time research assistant doing interviews and talking to people and following up, but a lot of it I did myself. I drove down to a brick factory in Pennsylvania, and in three hours got enough stories to fill up a book. These stories are not hard to come by. This is the story of America. If this book does well, which I hope it does, and if it has an impact, which I hope it does, it's because the people reading it will recognize all these stories.
LAMB: Is this your first book?
LAMB: What's the hardest part of all this, by the way?
HOWARD: There were two very hard parts of it, actually. The hardest part was getting beyond the conventions of modern America. For six months I didn't sleep at the end of 1992 because I knew I was onto something and I couldn't quite figure it out. Getting to the idea that law shouldn't be precise and the idea that we had replaced responsibility -- which is the whole basis of our republic, our political system's responsibility -- we've replaced that with process and the notion that rights, instead of being the thing that we think they are, which is this hallowed, wonderful, most American tradition, were in fact anti-American and the opposite of the rights that our founders had fought for. It took getting through a number of psychological hurdles. It seems so obvious to me now that I've written the book and obvious, I think, to most people who read it, but it wasn't obvious to me several years ago. It was very hard.
LAMB: You quote a fellow by the name of John Tuck, a former undersecretary of the Department of Energy, as saying, "It's been 30 years since I felt anyone has been excited about working in government." Now, you can hear folks sitting out there that aren't liberal, aren't Democrat, are conservative and saying, "The liberal Democrats 30 years ago started this process that now they're complaining about." Explain how this all works 30 years later where you're upset about what the results are.
HOWARD: One of the many ironies here is that the conservatives are just as much to blame as the liberals, and I think one of the great misinterpretations of modern politics, which is happening on Capitol Hill as we speak, is that the battle is between government or no government. That's what Reagan said, and that's what Gingrich is saying. I really don't think that's the battle. If you look at polls of Americans, they want environmental regulation. I don't know anybody who doesn't want environmental regulation. They want worker safety laws. They want most of the regulatory services. The question is how it works. A little over 30 years ago they started changing the way they wrote law, but it wasn't the liberals who were behind it alone. The conservatives are so desperately afraid of anyone in government having any discretion that they want to tie it all down, button it up, so that there's no possible chance for anyone to use their judgment because they so fear government officials. The liberals so fear people being regulated, think that businesses are going to pay off the government officials, going to use their economic might to get away with murder, that they want to button it up and tie it down so they can never squirm out of the regulation. The one place where both the liberals and conservatives agree is the one place where government fails, which is everything has to be laid out in advance, that law will be an instruction manual telling us how to live our lives.
LAMB: Where did you go to school?
HOWARD: I went to, starting with . . .?
LAMB: College.
HOWARD: I went to Yale College.
LAMB: Where did you get your law degree?
HOWARD: I went to the University of Virginia Law School.
LAMB: The reason I'm bringing this up is I wrote down the different justices and judges that you quote in here, and I'll just quickly go over them: Charles Evans Hughes, William Brennan, Earl Warren, Benjamin Cardozo, Felix Frankfurter, Antonin Scalia, Oliver Wendell Holmes Jr., J. Skelly Wright, David Bazelon and then a lot of other folks. But of all of those it seemed that I saw Benjamin Cardozo the most and he's the common law man. Why?
HOWARD: Because law is actually no different now than it was in Roman times. Law, the complex relationship between guidelines and flexibility, is something that human beings have been struggling with for as long as there's been civilization. These issues have all been thought about before. Benjamin Cardozo, at the end of a period beginning at the turn of the century, when people said, "We thought we could turn law into a science," had a series of lectures at Yale that were brilliant. I mean, I encourage everybody to read them. One's called "The Nature of the Judicial Process," where he says, basically, law can't be like a perfect letter-writing guide. You can't create the certainty that isn't available elsewhere in life. We can use guidelines and rules to an extent, but we always have to fall back on our judgment and community mores, and law can't work in any other way. These people, these incredibly brilliant and wise people, have been largely forgotten. They understood the problem that the people who wrote our laws in the last three or four decades didn't understand. They just made the same mistake that some people at the turn of the century made, thinking they could make law into a science.
LAMB: Did you study people like Benjamin Cardozo at the University of Virginia?
HOWARD: A little bit. To be fair, I wasn't much of a student. I was always at the very bottom of the very top of the class, and I got that way not by being a great student in a learning sense. Most of these things I really read closely for purposes of this book.
LAMB: That's what I wanted to ask you, because you also quote Woodrow Wilson before he became president and Jim Landis.
HOWARD: These were all discoveries. I knew who many of these people were, but they were discoveries. The year and a half before I tried to write the book, that's who I was reading. I said, well, who can comment on these things? I was just reading. I read Hayek, I read Woodrow Wilson, Cardozo, Holmes. There's a wonderful Holmes compendium.
LAMB: You're talking about the son of Oliver Wendell Holmes?
HOWARD: No, I'm talking about the one we know about.
LAMB: The justice.
HOWARD: The justice.
LAMB: The father was also a writer and had the same name.
HOWARD: Right, but I'm talking about the Supreme Court justice whose career -- again, people have forgotten most of this. Oliver Wendell Holmes Jr. was a lieutenant in the battle of Antietam and was wounded and was still on the Supreme Court in 1932. His extraordinary career and his letters and speeches are -- a compilation of them was put together by Judge Richard Posner a couple of years ago called The Essential Holmes, a wonderful book sort of expressing the humor and intelligence of a great American and great thinker.
LAMB: You also quote V Clav Havel and Max Weber, socialists from Germany, and you said Friedrich Hayek from Austria and Tocqueville. Now, I've got to ask you about Tocqueville. Every book I've picked up on this show almost in the last, I don't know how many, months has quotes from Tocqueville.
HOWARD: Well, he's a smart guy.
LAMB: When were you first introduced to him?
HOWARD: I never read Democracy in America from cover to cover closely until I got interested in this subject, and there is much in there and it's a joy to read.
LAMB: Was he a liberal or a conservative?
HOWARD: I don't know. I think he's conservative in many ways, but I think he's a humanist. I think the important thing about all the people who you've cited -- not all of them actually; some of those people are villains. I cite them as villains rather than . . .
LAMB: Who's your villain?
HOWARD: There are a number of what I would call villains. Charles Reich, the professor at Yale, I think is a villain.
LAMB: He gets a lot of attention in your book.
HOWARD: Yes, he does. It was actually a nice utopian idea, and everybody at Yale in the '60s, including myself, fell for it. It just didn't happen to work, his idea basically being that every dealing with government should be like a property right and protections of due process should apply even to the most incidental government encounters -- teachers with students, contractors with bureaucrats. It's proved to be like an infection.
LAMB: Let me interrupt you. He had an article called "Property Rights" or a book?
HOWARD: He had a wonderfully written article called "The New Property Rights" in 1963.
LAMB: When were you at Yale?
HOWARD: I was at Yale from '66 to '70.
LAMB: Did you know Charles Reich?
LAMB: Is he still alive?
HOWARD: Yes. He's still a professor at Yale.
LAMB: And you say he had a tremendous impact.
HOWARD: Oh, a tremendous impact, enormously influential. The Supreme Court fell right for it.
LAMB: So one article . . .
HOWARD: No, it wasn't. Then he had a follow-up article. He wrote a book called The Greening of America. He had a number of -- he's a very prolific and brilliant writer. He just happens to be wrong.
LAMB: Who picked him up, though? I mean, who used his work?
HOWARD: Look at the context. Everybody did. Much is a function of the times in which it happens just as we are in the middle of, perhaps, a Gingrich revolution or the like. We were then at the crest of the civil rights movement where people were re-examining the whole idea of authority and we had all these abuses of Southern governors. We had just discovered that rivers were so dirty that they were catching on fire and water supplies were threatened. There were all these things that had been neglected and injustices that hadn't even been touched that we were discovering at the time that Charles Reich started writing his articles. It was in that context that he flowed forth with a new theory that would prevent these things from ever happening again. The problem was it dehumanized government, and it essentially tried to do away with the idea of authority, which in the context of a teacher trying to run a classroom is a very dangerous thing to do and has resulted in what we have today, which are inner-city schools which are completely out of control.
LAMB: In your bio in the back, you are involved in a lot of things in New York City including an officer of the New York City Industrial Development Agency. What is that?
HOWARD: It's a corporate, it's just a way to try to get businesses to stay in New York. It's not the most important government agency around.
LAMB: How about the Municipal Art Society?
HOWARD: That is pretty important. It's a civic group, and it's actually enormously influential. It's a civic group with a very good and active board concerned with land-use issues, and I used to be counsel and now I'm a vice president, and it led the fight to save Grand Central Station, St. Bartholomew's Church. Years ago -- it's 100 years old -- it was the principal mover behind the first zoning code in New York. We brought a lawsuit, very unusual for a conservative organization -- members of the board are heads of corporations and lawyers and such -- to stop, for example, the building that was going to built on Columbus Circle that was going to cast a shadow on Central Park.
LAMB: This is the Mortimer Zuckerman . . .
HOWARD: Yes, the Mortimer Zuckerman, now my patron. He put me on the cover of his magazine, but at the time I brought a lawsuit and stopped his building from being built.
LAMB: And it's the magazine we just talked about right here.
HOWARD: Right.
LAMB: You can get a shot of it here and you can see. Do you know him?
HOWARD: Sure. I went around debating him at the time he was trying to put the building up.
LAMB: So you were against it?
HOWARD: Absolutely.
LAMB: Why did he put you on the cover and put an excerpt in his magazine?
HOWARD: I think he liked the book.
LAMB: You also headed zoning for a New York community board.
HOWARD: Right. A wonderful experience. New York is divided into community boards which consist of 40 members, each one, approximately that are appointed, and then they elect their own officers within them. They hold public hearings, and they make recommendations on matters of public significance, and for a number of years as a young lawyer I ran the zoning part of that community board, which was Midtown Manhattan, and essentially running the zoning board for Midtown Manhattan. It was very interesting, many fights; a wonderful fight against Harry Helmsley who was going to threaten to bulldoze the Tudor City parks in this development he owned. He put bulldozers next to them and scared all the residents half to death, and unless the city gave him a playground -- it wasn't any great shakes, but it was a public playground across from the U.N., which was nearby -- for him to put a building on. These kids kept coming to the community board -- I was chairing this hearing -- high school kids who ran a roller hockey league for younger children. One of the kids, John Caulfield, had a terrible stutter. There were three minutes for speakers to speak at the public part of the hearing. He would get up and speak and he couldn't even get his name out basically in the three minutes, and it was torture. There he was in front of, in any given night, 150 or 200 members of the public plus the community board members, stuttering away trying to say why the playground was important and so moved me and everybody else that we decided that we would figure out, do whatever we could to stop the city from swapping this playground for the Tudor City parks and, if necessary, to call his bluff. If he wanted to wreck the value of his own development -- and that's a bad thing for a person to do -- so be it, but why should we let this villain take a public playground just because it wasn't Central Park, and we eventually beat him.
LAMB: You also were an original member of the Mayor's Institute on City Design for the National Endowment for the Arts. What's that?
HOWARD: It's a wonderful thing put together by Adelle Hatfield Taylor which has conferences every year and gets design experts in different fields and mayors from different cities for a long weekend, and each gives presentations, the mayors on their cities and the experts on different issues affecting America, so that they can learn from each other about all the issues including transportation or parking or just urban beautification or whatever of urban design.
LAMB: Your book is endorsed by at least four people. Andrew Tobias, who is he?
HOWARD: He is a columnist for Time magazine and also an author in his own right. I don't know him.
LAMB: So you had nothing to do with that endorsement?
LAMB: Endorsed by Andrew Heiskell, former publisher of Time. Do you know him?
HOWARD: I'm acquainted with him. I know him to occasionally have dinner with him.
LAMB: "The Death of Common Sense is a wildly important book which should change the direction of public debate in this country." Do you think it has?
HOWARD: Not yet, but it's striking a chord. I've just gone down to Florida to visit the governor, who's invited me down to talk about ideas for remaking his government around the ideas in my book, and several other governors have also called. So I'm hopeful that it may make a difference.
LAMB: It's endorsed by Arthur Schlesinger, who you said kind of started all this.
HOWARD: Right. He was very helpful to me through the process and was a sounding board. He kept encouraging me to go get more history.
LAMB: "A brilliant diagnosis, forceful, trenchant, and eloquent." What does it take to get an endorsement from Professor Schlesinger like that?
HOWARD: I don't know. He read the book and offered it up.
LAMB: The other one is John -- I'm not sure how to pronounce this -- Guare?
HOWARD: Right. I know John.
LAMB: G-U-A-R-E, and who is he?
HOWARD: John's a friend. He is a playwright and a very brilliant and thoughtful person. He wrote Six Degrees of Separation, the movie Atlantic City, House of Blue Leaves, lots of plays and some movies.
LAMB: And how much of a say-so do you have in the title and the cover and your picture and these endorsements?
HOWARD: I cared about the cover, so I had say-so. I care about things like that. I had the photograph taken and tried to make myself look as good as possible.
LAMB: Why The Death of Common Sense? When did you recognize that as the title?
HOWARD: About halfway through writing it. It's what I'm writing about. What we've done is create a system of law that doesn't allow people to use their judgment. In bureaucracy the entire ethic is that you're not supposed to use your judgment. A few years ago there was a leak in an abandoned railroad tunnel underneath the Chicago River, and because the leak could be potentially disastrous, it immediately got up to the top levels with the commissioner. The commissioner said, "We better fix this up right away. How much is it going to cost?" His assistant said, "I think it will cost about $10,000." So they were going to go to a reputable contractor and get it fixed. The guy came back the next day and said, "They say it's going to cost $75,000." At that point the commissioner paused and said, "Someone might criticize me for spending -- that kind of discrepancy. Better put it out for competitive bids, because that's the way things are done in government." Well, that takes months or years depending on which government you're talking about. Before the process even got going, the tunnel collapsed; the water flowed into every basement in downtown Chicago, cost $1.5 billion worth of damage. All the files turned to wet pulp, computers were ruined, short-circuiting electrical boxes everywhere. It was a complete nightmare. It stopped down-town Chicago because the head bureaucrat of a major agency didn't want to take the responsibility for spending $75,000 to fix that leak. The interesting thing about it is you almost don't blame him because in our current culture we so criticize people for doing anything, for taking responsibility, that you can see some tabloid saying, "Gee, he spent $75,000. He's done business with him before. Let's investigate him." There's so much distrust in the system that anyone would be a fool to use their judgment, so they don't. We've created an entire legal system in furtherance of the idea that human judgment has no place in law, when law is a human institution. Law can't think. It will never be able to think. Words on a page will never be able to tell a bureaucrat or us or anyone else how to do the right thing.
LAMB: When did you know that you had something here that people were going to pay more than passing attention to? What was the first indication you had?
HOWARD: Even before I decided to write the book, I thought I'd discovered something that was really important.
LAMB: Yes, but when was it that you got confirmation, someone said, "I want to excerpt that" or "I want you to come on my show" or whatever?
HOWARD: You know, I didn't need that, with all due respect. I knew I had it. I knew I had it before I wrote it.
LAMB: I don't mean that you didn't know. I just mean when did you first get that real indication?
HOWARD: Random House, when they saw the manuscript, quadrupled the estimated size of the first printing.
LAMB: What did you print first?
HOWARD: I don't know. I think it was about 60,000 copies.
LAMB: Okay, that was the first indication. When did you have the first public confirmation? In other words, that first endorsement where somebody said, "You've got to do my show," or somebody wrote a column about it.
HOWARD: Oh, I sent the manuscript around to a few people like Andrew Heiskell. Andrew Heiskell is not a person given to effusive language, and he called me up and paused and said, "Hello, this is Andrew Heiskell. I've read your manuscript. Thank you." He paused again, and he said, "This is a wildly important book. It will change America, and I'll do whatever I can to promote it."
LAMB: What I'm getting at here is you've got Arthur Schlesinger on this flap, and you've got George Will on the other side doing the same thing in his column. So what is it? No one wants to take the blame or no one wants to take the credit for what happened the last 30 years?
HOWARD: Who cares what the blame or the credit is? The question is, what works? And it's understandable how we got here. The system is plausible; it just doesn't happen to work. I think what I've tried to do, as I've said, is create a different way of looking at it. It's as if I put on a new pair of glasses and said, "Hey, wait a minute. If you look at this public goal and these goals this way, if you scrap the assumption that everything must be exactly the same, all of law" -- we have this idea of uniformity that really is just central planning; everything must be the same, all is perfect, decisions come out prepackaged, fresh frozen, untouched by human hands. that that's what law is. You'll get the system we have, which is nothing but red tape and ineffectiveness. All I've done is take away the underpinnings that have generated all this red tape and ineffectiveness, and I think both the right and the left see it for the truth of it.
LAMB: Okay. Then how do you change it?
HOWARD: Well, first, you give them the vocabulary for changing it, which they haven't had before, which I hope that my book does or comes to do.
LAMB: Give me an example.
HOWARD: Easy. Carol Browner, EPA administrator, who I know is driven crazy by exactly the things I'm talking about in the book, says, "OK, what do we need to get authorization, what change in legislation, to negotiate pollution control plans with major factories? What do we need to do that? What do we need to be able to make exceptions or to just disregard for the moment all these rules and regulations?" She figures out what that is. At the worst, it's five lines in a statute passed by Congress, and then she says, "Let's go out." Or she says, "Come on in. If you don't like your pollution control plan, let's negotiate." All of a sudden I think what you would find in those negotiations, which would be complex because these things are complicated issues, is that you could probably reduce pollution dramatically and, in most cases, probably reduce costs dramatically because you could customize. And factories, these huge chemical complexes or the like, are too complicated. You can't do that with every tannery. You've got to have a different set of rules for that. There are not enough people, but you can for the 5,000 plants that produce 95 percent of the stationary pollution in this country.
LAMB: Let me read something you wrote: "Thirty years ago with the Civil Rights Act of 1964, our country passed a landmark law that succeeded in breaking down many artificial barriers. The law did not eliminate prejudice, but it created an opportunity in which prejudice could begin to dissipate. Now, barely three decades later, we are well on our way to rebuilding those animosities. Discrimination is an open wound of our society but, like animals, instead of caring for it as it heals slowly, we can't help but keep biting at it. The wound just opens up more." Thirty years later, the Civil Rights Act didn't work?
HOWARD: It worked. It did work actually. It worked on its own terms. We broke down barriers of desegregation. What it's doing now, though, is actually counterproductive, and this is an incredibly interesting and perhaps the most dangerous and subtle point of the points in the book, because there you had a situation where people did not enjoy the freedoms that the rest of the Americans enjoyed, and so, you know, blacks had been discriminated against for centuries, women had been discriminated against for millennia. So we had these laws passed that were very effective, not in eliminating prejudice, but eliminating the institutional barriers that existed. But what's happened now is, now that those barriers are down, not that prejudice is eliminated but the basic institutional barriers are down, is discrimination law is being used in a completely different way. It's become the language of work-place discrimination. So instead of going after some company that never promoted women because they were women, now it's used by people who have a fight because they lose their job or they don't get a promotion and they say, "That was discrimination." My point is that goes from something that you can look at and identify, a pattern or practice of discrimination, to something that no one can possibly know, which is what is in someone else's soul. The result is that nobody in America, the country of the First Amendment, no longer appreciates, no longer tolerates candor. People don't say what they think because it might be used against them in a discrimination claim. It is perfectly counterproductive. Businesses don't take chances on minorities, particularly ones who may not have the educational qualifications that others might have, because they're afraid they'll never be able to get rid of them. Employers patronize blacks, who don't need to be patronized at all. It has created a communication rift which will make it impossible for us ever to be an integrated society because people are no longer talking.
LAMB: Of all the people you spent time with and we named a lot of them -- Hughes and Brennan and Warren and Frankfurter and Scalia and Wilson and Daniel Webster, I didn't mention earlier, and Landis and Madison and Reich and Havel and Weber and Hayek and Tocqueville -- who would you recommend if someone wasn't as familiar as you are with all this that they go out and pull the book off the shelf and spend some time with it?
HOWARD: I think I would read Cardozo's The Nature of the Judicial Process, which is still available in paperback. I would read Posner's compendium of Holmes' writings.
LAMB: This is Richard Posner from Chicago?
HOWARD: Yes, Richard Posner.
LAMB: The judge?
HOWARD: The judge. I don't think I would read Landis or Hayek. They go on too long. Havel is brilliant on this subject. V Clav Havel understands how anti-human Western democratic structures have become, and every year or so he'll write an op-ed article warning us against the effects of rationalism, the idea that we can figure everything out in advance and lay it out in a government structure and in a law. Havel is wonderful on the subject.
LAMB: Here's what the book looks like. It's called The Death of Common Sense, and our guest is Philip K. Howard. We thank you very much for joining us.
HOWARD: Thank you.

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