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News and stories from the campaign to reclaim individual responsibility and liberate Americans from bureaucracy and legal fear.

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The Future of the Individual: A Forum with Philip Howard and Edmund Phelps

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:

  • Stephen Goldsmith, former Mayor of Indianapolis
  • Kay S. Hymowitz, Manhattan Institute
  • Deborah Kenny, Harlem Village Academies
  • Robert E. Litan, Brookings Institution
  • Peter Pazzaglini, Columbia University
  • 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
  • Peter Thiel, co-founder of PayPal

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.

Event Details

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 12:15 PM.

Location: Covington & Burling, 43rd Floor, The New York Times Building, 620 Eighth Avenue, New York, NY

RSVP: Registration required. If you’re not responding to the Paperless Post invitation, please e-mail your name, title, and affiliation to Ruth Mary Giverin at rmgiverin@commongood.org. Please e-mail Ruth with any questions as well.

This event is made possible by the generous support of the Ewing Marion Kauffman Foundation.

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Are courts our legislatures?

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.

Reflection, Old St. Louis County Courthouse, St. Louis, Missouri (1976)

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.

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Ideas for a New Political Platform

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:

  1. 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.
  2. 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.
  3. 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.

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Breakout with Newt Gingrich

In his September 29th "Breakout" podcast, former Speaker of the House and Common Good Advisory Board member Newt Gingrich talks with Philip Howard about reforming the federal government and The Rule of Nobody. Listen to the conversation here.

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When Humans Lose Control of Government

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.

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David Brooks Cites Philip Howard, “The Rule of Nobody”

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.

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Katzmann: Judging Statutes

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:

  1. Legislators should make greater use of the legislatures’ own drafting services.
  2. Legislators should have guidebooks and checklists of common issues.
  3. Legislatures should provide default rules for legal issues not covered directly.
  4. There should be authoritative legislative history (he could have added that there should be official reports to accompany not some, but all statutes).
  5. Statutes should be regularly corrected and updated.
  6. 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).
  7. 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.

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Is the Global Perception of Risk Destroying Play Opportunities for Children?

By Blair Barrows

An alumna of the University of the South in Sewanee, TN, Blair Barrows recently spent a year traveling the world to study the relationship between child play and education. In the U.S., legal fear and risk aversion have engendered increasing restrictions on children’s ability to explore and experiment freely in their environments. Blair’s story shows why it doesn't have to be this way.

In 2012 I was awarded a Thomas J. Watson Fellowship, a one-year grant for independent study outside of the United States. Through the Fellowship, I planned to explore classrooms that utilize play as a learning tool in South Africa, the UK, Finland, Italy, Germany, India, and New Zealand. At the time, I had no idea how much I would learn about the global play world.

Although I knew that the concept of the “bubble wrapped child” was growing in the U.S., I did not realize how much we do not let our children do until I observed alternatives other countries. While exploring Waldorf, Montessori, Reggio Emilia, Environmental, and Holistic education, I saw children, as young as three years old, using knives, carving wood, manning a saw, climbing trees on school property, getting rough in sports, and playing freely in and outside of the classroom at school. Giving children the opportunity to engage in self-driven free play meant that the children would encounter risky situations. In the eyes of these schools, allowing children to experience risk helped the children to handle risk better in the future. For example, if a child is taught how to use a pocketknife correctly at an early age, then he/she is less likely to use one recklessly later in life. In many of the schools that I worked with, the teachers, administration, and parents were confident with the decision to let children experience risk because they understood the rewards. Schools that embodied free play also embraced risk. Reflecting on educational and play trends in the U.S., I began to realize that play was being removed from schools because play had become associated with fear and danger.

When I was not in a classroom, I learned about local organizations that supported play, play advocates, and government initiatives to create more play opportunities. These organizations and personnel understood that the words “risk” and “play” were becoming synonymous, and they wanted to change parents’ and school’s opinions. One such movement that I fell in love with is the Adventure Playground. Adventure Playgrounds, which have been around for a number of decades, capture the pure essence of free play because they allow children to literally create their own play environment using the loose pieces around the playground. Originally founded in the United Kingdom, Adventure Playgrounds can now be found throughout Europe. Often, these playgrounds would allow children to build, on-site, their own structures with nails, hammers, and wood. I observed children grinning with joy as they described a fort they had built, relay race they had organized, or game that they had created. And despite popular belief, each playground organization that I interviewed said that they hardly had any serious injuries. Children who come to the playgrounds understand the importance of safety when working with construction materials and navigating construction sites. Although a few Adventure Playgrounds exist in the U.S., I fear that the movement may never grow because people would not be able to see past the potential risks associated with them. However, if Americans were able to look past the risk, they would see what I saw—happy and confident children.

The last country that I traveled to was New Zealand and, unfortunately, I saw just how much the global trend of risk aversion had affected a country that prided itself on being a “barefoot culture” and popular extreme sports destination. A local play advocate explained that risk aversion is quickly growing in New Zealand. At the time of my interview, July 2013, New Zealand did not have what he referred to as a “suing problem” because it was illegal to sue someone over an incident such as falling on a playground, and therefore, disputes were handled much more on a personal level. This lack of litigation allowed free play to thrive and encouraged parents to let their children be involved in play at home and at school. However, he told me that New Zealand was beginning to change. Schools were tightening down on which games were allowed at recess, parents were supervising their children more, and the “barefoot culture” was being exchanged for a more rigid educational structure. Our conversation showed me just how much the fear of encountering potential risky situations had crept into international policy. When a country without a needless lawsuit problem was succumbing to the social pressures of limiting risk, and thus free play, had the idea of the “bubble wrapped child” gotten out of hand?

Originally, I had hoped to explore the relationship between play and education; however, on my journey I discovered so much more about the importance of play and the growing threats against it. Children’s play opportunities should extend beyond the walls of the classroom, yet schools are cutting out programs left and right. Now that children are seeking play elsewhere, parents and communities are becoming concerned that their play may be too risky. Many play advocates and researchers that I interviewed agreed that in the long run, we are harming our children. In order to create a generation of children who can appropriately analyze risk for themselves, without adult intervention, children must be given more chances to play freely. Through changing the perceptions of what risk and play mean, I believe that more play opportunities can return to schools, streets, backyards, and playgrounds.

If you have comments or questions for Blair, you can reach her at sblairbarrows (at) gmail.com.

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Warning: You Will Sue

Via James Maxeiner, here's a refreshingly (or depressingly) honest warning sign from Wisconsin (source):

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City of Angels Seeks Red Tape Savior

While stories of federal government inefficiency usually involve more jaw-dropping numbers and create more heat among the chattering classes, paralyzing and wasteful bureaucracy permeates every level of government. Steve Lopez of the Los Angeles Times this week tells the story of Bob Stone, a fix-it man hired to curb L.A.’s red tape problem--for an annual salary of $1 (which he still hasn’t received). Mr. Stone is no stranger to government paralysis; he was instrumental in Vice President Al Gore’s "reinventing government" initiative (in which Philip Howard also participated). But in L.A., Mr. Stone found a bigger challenge than he had expected: "After struggling and battling the federal bureaucracy for 30 years, I thought L.A. would be a pushover. But it's tougher than the federal bureaucracy."

Mr. Stone discovered that city employees are forced to navigate a labyrinth of approvals and checks, even for what should be simple tasks, like ordering firefighter uniforms. Both workers and managers waste countless hours following outdated procedures, filling out paperwork, and struggling with obsolete technology:

"Two-thirds of what passes as management is interfering with workers getting their work done," Stone said, attributing the suffocating practice to a 19th century notion that "the way to manage is to control what people do."

So Mr. Stone is doing his best to simplify--replacing complex and expensive procedures with simple and affordable alternatives, saving the city money and, perhaps even more importantly, freeing city employees to do their jobs. As Lopez writes:

Any large organization, public or private, has dumb ways of doing things just because that's the way they have always been done. And at any given time, Stone suggested without irony or exaggeration, roughly one-third of all employees are impeding the work of the other two-thirds.

Does that mean there are too many employees, I asked? What it means, Stone countered, is that employees could get a lot more done if they weren't bound and gagged by red tape and managerial impediments.

More cities could use the kind of intervention Mr. Stone is undertaking. And perhaps such efforts can serve in turn as instructive examples for federal bureaucracies.

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