The following statement by Philip K. Howard and Edmund Phelps was presented in conjunction with Common Good's recent joint forum with Columbia University’s Center on Capitalism and Society, "The Future of the Individual." In the coming days we will post videos and summaries from the forum. This joint statement can be downloaded as a pdf here.
Nothing gets done sensibly, or fairly, unless a real person makes it happen. This is true for a teacher in a classroom, a CEO in a company, a nurse in a hospital, a worker on a shop floor, an inspector of a restaurant, or a high official in Washington.
Making these choices requires an open zone in which the responsible individual feels free to draw on experience and instinct to make a judgment. Sometimes the decision will be a good one, sometimes it won’t. This process of trial and error is how people learn. It is part of economic advancement and the rewards of work. Similarly, achieving innovation requires a real person to imagine the product or method, to judge whether it has a chance of success, and to create the thing.
Today, Western nations are organized to avoid individual choice. Rules and systems tell us how to do things “correctly.” Mindless compliance supplants personal responsibility to achieve a result. The idea is that systems, not humans, will lead us to the promised land.
The harm is not just ideological—that individuals are less free. The harm is practical—things don’t work. Schools are lousy, healthcare unaffordable, government paralyzed, and people feel powerless to do anything about it. Economic growth is slower and the labor force has shrunk—observations suggest that innovation is constricted and job satisfaction has narrowed.
America needs a new public philosophy. Humans must be reinstated as the activating force. Systems and regulations must be rebuilt as a corral with an open area for human responsibility, not as an instruction manual that dictates daily choices. Corporate attitudes that block innovators from building in communities and handicap outsiders from competing with insiders must be exposed as costly to human fulfillment. Law should be a framework for free choice, not a replacement.
Put humans in charge. A revolution will be required. But that is proof only of how far we’ve slipped. This is not just a plea for better public policy. This is a new belief structure. Let us take responsibility. Judge how we do, don’t tell us how to do it.Comment ›
Writing for the website of the Cato Institute, Philip Howard argues that we must radically simplify law to unlock the potential of the individual:
Law needs to get rebuilt. There’s no avoiding it. Sensible choices today are illegal.Productive activities are sinking in legal quicksand. Even the president can’t break loose. It’s the law.
But the new approach to law is not (generally) captured in the idea of “deregulation.” Most Americans want environmental review, special ed, financial regulation, licensing of food vendors, and oversight of healthcare delivery. Lawsuits are an essential tool of the rule of law.
All of these desirable goals of law, which should enhance our freedom, are instead undermining our freedom. Indeed, it’s hard to find one government program that isn’t broken, and often counterproductive.The evidence is irrefutable: Read Peter Schuck’s book, Why Government Fails So Often. My favorite failure is civil service — designed to be “the merit system,” it instead makes it illegal to judge anyone based on merit.
The mutant root that has produced this impenetrable bureaucratic kudzu is the idea that law can supplant human judgment. We have tried to create a hands-free legal code, without any risk of human frailty. Most legal detail is aimed not at important legal goals or principles, but at dictating daily implementation. That’s why the Volcker rule is 950 pages. The Constitution, by contrast, is ten pages.
American law has become central planning. Actually, it’s worse, because the planners are dead.Detailed laws and regulations are still dictating behavior decades after they are written, when circumstances have long since changed.
The solution, broadly, is to restore human responsibility as the activating force of law and regulation. Law should be radically simplified into goals and governing principles, like the Constitution, and leave to accountable humans the responsibility to achieve those goals fairly and sensibly. Law becomes a fence around a corral, within which humans can try to achieve results in their own way. Any successful regulatory oversight works this way. The FAA, for example, certifies new planes as “airworthy” without detailed codes on how many rivets per square foot etc. Would you rather fly on a plane that was permitted to fly only because a court decided it complied with detailed regs? Australia replaced a thousand rules for nursing homes with 31 broad principles such as requiring “a homelike setting” and respecting “privacy and dignity.” The experts scoffed. Within a year the nursing homes were materially better.
Read the full essay here.Comment ›
On Thursday, November 6, Common Good and Columbia University’s Center on Capitalism and Society will hold an afternoon forum in New York City on reviving the conditions for individual initiative in America. The event’s hosts are Common Good’s Philip K. Howard and Nobel laureate Edmund S. Phelps of Columbia’s Center on Capitalism and Society. Other expected participants include:
- William R. Brody, MD, Salk Institute
- Stephen Goldsmith, former Mayor of Indianapolis
- Anthony Gottlieb, former Executive Editor of The Economist
- Heather R. Higgins, Randolph Foundation
- Kay S. Hymowitz, Manhattan Institute
- Sandeep Jauhar, MD, author of Doctored
- Daniel Kahneman, Princeton University
- Robert E. Litan, Brookings Institution
- James Mackintosh, Financial Times
- Peter Pazzaglini, Columbia University
- Robert Pondiscio, Thomas B. Fordham Institute
- Andrzej Rapaczynski, Columbia Law School
- Richard Robb, Columbia University
- Esa Saarinen, Aalto University (Finland)
- Robert J. Shiller, Yale University
- William H. Simon, Columbia Law School
- Juan Vicente Sola, University of Buenos Aires
- Mark C. Taylor, Columbia University
The forum will address how bureaucracy, corporatism, and cultural trends have diminished the room for individual autonomy and initiative, and will explore possible solutions. Reforms to expand individual opportunities and ownership of daily choices include simplifying regulatory structures, changing corporate incentives away from short-term thinking, fostering decentralized government, discouraging uniform solutions to social problems, sponsoring local manufacturing to build the conditions for know-how, redirecting education toward imagination and creativity, and expanding the public narrative to highlight the role of human initiative in all accomplishment.
The forum will consist of short opening presentations, followed by four panels. A cocktail hour will conclude the event.
Title: The Future of the Individual
Date: Thursday, November 6
Time: 1:00 PM to 5:30 PM (followed by a cocktail hour). Registration and lunch begin at noon. Event program with agenda.
Location: Covington & Burling, 43rd Floor, The New York Times Building, 620 Eighth Avenue, New York, NY
RSVP: Registration required. Please e-mail your name, title, and affiliation to Ruth Mary Giverin at email@example.com. Please e-mail Ruth with any questions as well.
This event is made possible by the generous support of the Ewing Marion Kauffman Foundation.Comment ›
Common Good Chair Philip K. Howard penned the following letter in today's New York Times:
In "Ideology and Investment" (column, Oct. 27), Paul Krugman rightly argues for greater investment in public infrastructure, but he doesn’t mention that bureaucracy, not ideology, has put the brakes on every recent infrastructure initiative.
A White House report in February revealed that only 3.6 percent of the $800 billion federal stimulus plan went to rebuilding transportation infrastructure. That’s not because ideology got in the way but because federal, state and local bureaucracy did.
Infrastructure approvals can now take a decade or longer, extending beyond the term of any president. In greener countries like Germany, by contrast, approvals rarely extend beyond 20 months.
To rebuild America’s decrepit infrastructure, responsible officials must be authorized to say “go.” An official of the Environmental Protection Agency must be given the job of deciding when there’s been enough review. A “one-stop shop” must be created to coordinate all needed approvals.
Infrastructure is a good investment. Bureaucracy, not ideology, is what stops it.
Read the original here.Comment ›
by James R. Maxeiner
The authors of The Invention of Courts, the latest volume from Dædalus, The Journal of the American Academy of Arts & Sciences, are fixated on courts as legislatures. They imagine that courts are where democracy should unfold and rules should be made.
Co-editors of the volume are Linda Greenhouse, longtime Supreme Court correspondent at the New York Times and now lecturer at Yale Law School, and her Yale colleague, Professor Judith Resnik. They have brought together more than a dozen contributors—all thoughtful law reformers—to deal with the issue that "in our aspiration for ‘justice for all,’ we too often fall short." They correctly see the problem: "[W]e assign courts an astonishing range of tasks while lacking consensus on whether alternative mechanisms could do some jobs more efficiently, less expensively, and better than adjudication." But they hardly offer solutions beyond more judicial legislation.
Professor Resnik, in the volume's lead essay, "Reinventing Courts as Democratic Institutions," rejoices that judges are no longer "loyal servants of the state" and lauds the "transforming [of] adjudication into a democratic practice to which all persons have access." Courts are to endure, she says, as "democratic sites of norm contestation." In other words, she would have a litigation state and a rule of lawyers.
Professor Resnik has it wrong: courts should not be substitutes for the democratic process. In a government of laws, ordinarily courts should carry out laws, not make them. Rebuilding justice is about governing and not about litigating. It is about drawing lines in well-drafted statutes that allow people to use their common sense and live their lives without lawyers. It is about people and the people’s servants taking responsibility under law.
The volume presents as guiding metaphor William Clift’s 1976 "Reflection: Old St. Louis County Courthouse, Saint Louis Missouri," where the infamous Dred Scott case was decided in first instance. It shows the Old Courthouse in St. Louis in the mirror image of a new skyscraper. It’s an odd choice.
Real reform requires more than looking in the mirror. It requires that we see through the looking glass into another world, where laws govern and judges judge. Today, American exceptionalism won’t let us stop admiring ourselves in the mirror. Other systems do work better.
It’s an odd choice for another reason. Professor Resnik sees the Courthouse "as a testament to injustices promulgated there in the name of the law." But the injustice was not in the St. Louis Courthouse, where a jury applied law to set Scott free, but in Washington, in the Supreme Court’s quarters under the Senate, where the Court relied on judicial legislation to place Scott in bondage.
The Dred Scott decision should, at the very least, cause us to question our fixation on judges and judicial legislation and lead us to consider anew the "alternative mechanism" anticipated in our federal and state constitutions: legislatures. But that’s not the message of the volume. According to contributor Professor Jamal Greene, we should accept such bad judge-made law as "a chromosomal condition … as part of who we are."
The Invention of Courts, insofar as it challenges Americans to do better, is a positive contribution. Insofar, however, as it does not challenge us to reconsider the "modern" idea that lawmaking is for courts first, legislatures second, it makes matters worse. It is past time for reformers to look beyond the dysfunctional American world to any of the many civil law systems that do work.Comment ›
Posted 9/30/14 by Philip K. Howard
by Philip K. Howard
Most Americans think government is broken, and despair of either party fixing it—indeed, 58 percent say we need a new political party. But what should a third party—or an independent grassroots movement—stand for?
Let’s start with the simple, essential goal of fixing and modernizing our broken government. A crescendo from all sides is calling for a complete overhaul—including books by the editors of The Economist (The Fourth Revolution), Peter Schuck (Why Government Fails So Often), Francis Fukuyama (Political Order and Political Decay), Eugene Steuerle (Dead Men Ruling) and my new book (The Rule of Nobody). But Washington will keep doing what it did yesterday until forced to change. That will require a movement that millions of Americans stand behind.
The platform, in my view, should focus on neglected goals, not merely dealing with sleazy aspects of democracy. Goals are tangible touchstones, providing clear targets as well as a basis for accountability. The continued failure of the political establishment to make progress on core goals is also irrefutable.
In trying to appeal to the vast unrepresented middle, the platform probably also needs to accept goals that each ideological wing instinctively resists. Liberals care about the environment. Conservatives care about fiscal responsibility. Moderates care about both. As an alternative to political stalemate, this draft platform calls for balanced initiatives to achieve both fiscal responsibility and a sustainable environmental footprint. The way to pay for this is to radically simplify government, updating priorities and eliminating notorious waste, inefficiency and special interest subsidies that extend back to the New Deal. As a bonus, a modern, simplified government can liberate everyone from bureaucratic paralysis—getting millions to work on rebuilding infrastructure, and relieving doctors, teachers, small businesses and everyone else from the migraine headache of mindless bureaucracy.
Here it is.
Platform for the Future.
America is drifting toward the rocks. Political parties are unlikely to risk making tough choices. A new group needs to build support for a functioning future framework. The movement should be built upon three core principles, which the political system continually fails to act on. We must demand these principles not as partisan goals, but as moral mandates:
- We must modernize government. Government is paralyzed by an accumulation of obsolete programs and mindless bureaucracy. This bureaucratic blob is smothering the American spirit. Initiative and spontaneity are increasingly illegal—bogging down teachers, entrepreneurs, citizens, even the President. The solution is not to get rid of government but to reset priorities and simplify decision-making. Human responsibility, not endless bureaucracy, should be the organizing structure of government.
- American government must not mortgage the future. The undisciplined accretion of subsidies and entitlements is immoral, making our children pay tomorrow for today’s benefits. The solution is not to terminate programs but to overhaul them to eliminate their many inefficiencies and inequities, and to make sure they are responsibly funded.
- America must be a responsible steward of the earth’s resources. America will have no moral authority to lead worldwide initiatives for clean air and water, and to preserve the vitality of oceans, unless it is disciplined in its use and oversight of finite natural resources. This requires new incentives that protect base levels of sustainability.
To accomplish these goals, American government needs to be rebuilt. There’s no avoiding it. The status quo is set in legal concrete. Fulfilling moral mandates of responsible government requires new codes—replacing the massive junk pile of well-meaning laws and programs with modern, practical structures that meet the needs of today’s society, not yesterday’s.
America’s political culture will not be helpful. It has become an engine of the status quo, going nowhere at great expense, as special interests succeed in preventing change. Breaking free of this broken political culture requires a new vision, fueled by moral imperative, of where America needs to go. What’s the right thing to do? That’s the question that should guide our choices, and define America’s future.
Join with us by signing on.
What do you think? I hope you will comment, here or at the Huffington Post.Comment ›
Writing for The Atlantic, Philip Howard argues that modern government lacks any sense of responsibility:
Who’s responsible for the budget deficits? Nobody: Program budgets are set in legal concrete. Who’s responsible for failing to fix America’s decrepit infrastructure? Nobody. Who’s responsible for not managing civil servants sensibly? You get the idea.
Our mistake, Howard says, is in trying to establish "clear law" that accounts for every possible circumstance in order to eliminate human error. While this sounds good in theory, in practice it prevents government officials from making sensible decisions. Take the recent VA hospital scandal for example:
Why did VA officials regularly falsify waiting times? Bureaucratic metrics required them to meet waiting time deadlines—or else they would forfeit a portion of their pay. Why didn’t they just do a better job? Compliance was basically impossible: Congress had mandated more VA services but only modestly expanded resources. Undoubtedly, better efficiency could have been squeezed out of available resources, but that would require liberating VA officials from civil-service straitjackets so they could manage other civil servants. Rigid bureaucracy, not the inexcusable dishonesty of VA officials, was the underlying cause of the VA scandal.
Howard goes on to recommend three areas of bureaucracy that are ripe for reform: Oversight of social services, the environmental review process, and the civil service system. Read his proposals here.Comment ›
In his September 16 op-ed, "Goodbye, Organization Man," New York Times columnist David Brooks references Common Good Chair Philip Howard and his new book, The Rule of Nobody:
As recent books by Francis Fukuyama and Philip Howard have detailed, this is an era of general institutional decay. New, mobile institutions languish on the drawing board, while old ones are not reformed and tended. Executives at public agencies are robbed of discretionary power. Their hands are bound by court judgments and regulations.
When the boring tasks of governance are not performed, infrastructures don’t get built. Then, when epidemics strike, people die.
You can read Brooks’ entire essay here.Comment ›
By James R. Maxeiner
Judge Robert A. Katzmann’s newly-released book Judging Statutes (Oxford University Press) recommends reforms that echo history. His book is a welcome contribution toward saving America from dead laws and broken government.
In the 1870s and 1880s a wave of interest in better legislation swept the world. It washed up on our shores. Better lawmaking was one of the first topics that the newly-formed American Bar Association took up (already in 1884). In 1885 a committee of the Association of the Bar of the City of New York reported “A Plan for Improving the Methods of Legislation of this State.” In 1886 the American Bar Association adopted a resolution that “The law itself should be reduced, so far as its substantive principles are settled, to the form of a statute.” The Committee that proposed that resolution colorfully asked in its report in 1885:
We can imagine a primitive society, in which a king and his judges were the only magistrates. They had made no laws. The judges decided each controversy as it arose, and by degrees what had been once decided came to be followed, and so there grew up a system of precedents, by the aid of which succeeding cases were decided. Hence came judge-made law. But could any sane man suppose that this was a scheme of government to be kept up when legislatures came in?
The United States, however, rejected legislated codes in favor of judge-made common law.
Judge Katzmann’s best recommendations are not for the judiciary but for legislatures. They include:
- Legislators should make greater use of the legislatures’ own drafting services.
- Legislators should have guidebooks and checklists of common issues.
- Legislatures should provide default rules for legal issues not covered directly.
- There should be authoritative legislative history (he could have added that there should be official reports to accompany not some, but all statutes).
- Statutes should be regularly corrected and updated.
- There should be an agency, à la a ministry of justice, to formulate legislation (he could have added that such a ministry could be responsible for correcting and updating old statutes and for making sure that new ones coordinate with existing statutes).
- Judges should be involved in revising statutes.
We should follow Judge Katzmann’s recommendations. Better late than never. Delay does give us one benefit: we can draw on 130 years of experience from other countries with laws that are more coherent, less ambiguous, better coordinated, and more up-to-date than ours. Their laws can be understood and followed--in large measure because they anticipated Judge Katzmann’s legislative recommendations.
Judge Katzmann has less to say about how his own branch, the judiciary, could improve its performance. He does reject Justice Scalia’s textualism in favor of purposivism (looking past the word of a statute to its purpose). But an issue which deserves greater attention is judicial superiority. Unfortunately, the judge is unwilling to give up the judiciary’s grip on legislation. He signals that in his title: Judging Statutes.
America’s judges spend too much time judging statutes and too little time applying them. Judge Katzmann says the principal if not exclusive role of judges in understanding statutes is to “articulate the meaning of the words of the legislative branch.” That’s not the case in other countries with better legislation. Most of the time, judges are not expected to say what statutes mean. The statutes say what they mean. Most of the time, judges should be determining simply which statutes are relevant to the facts of the case. They need to fit the facts to the statutes and not rewrite the statutes to fit the facts. Authoritative interpretations of statutes--prescribing what statutes are to mean for the future--should be exceptional and not routine.
This criticism notwithstanding, we should thank Judge Katzmann for a work that can help Americans learn to deal better with statutes in the future.Comment ›