The Death of Common Sense: How Law is Strangling America, Philip K. Howard, Grand Central Publishing (1994)

This is a panoramic review of government regulation run amok, with many arresting examples.  The material seems somewhat dated, e.g., references to the Bush era refer to Bush 41, but still relevant.  There has been little progress in solving any of the issues that are discussed, if memory serves, aside from occasional suspension of burdensome, time-consuming rules during emergencies.  (Thus, as related on p. 172, the Santa Monica freeway was rebuilt in 66 days after the 1994 earthquake in Los Angeles.)

“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.”

Howard is not averse to government regulation as such; indeed he lauds the accomplishments of the New Deal (pp. 77-78) when administrators could act with lightning speed because their brand new agencies were writing on a blank slate.  The passage of the Administrative Procedure Act shortly after World War II (p. 78) started things on a downward track, in his telling, from which it has never recovered.

It is refreshing that an attorney would write a book so critical of his own profession, and most of the specifics ring true.  However, Howard gives insufficient attention to the possibility that the government has spread itself too thin.  Empowering unelected bureaucrats to exercise seat of the pants judgment in addressing all of the issues in which the government is involved might be more efficient than the present arrangement, but would the country be satisfied with the results?