The Blog

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

Blog

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.

Comment ›

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.

Comment ›

Warning: You Will Sue

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

Comment ›

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.

Comment ›

A Half-Baked Idea

The latest example of rules run amok comes from a section of the 2010 “Healthy, Hunger-Free Kids Act” that controls what food can be sold in schools. While the law’s goal—reducing childhood obesity—is noble, its approach is ham-handed, lumping traditional vending machine fare together with bake sales. As the Wall Street Journal explains:

At Chapman School in Nebraska, resourceful students hawk pizza and cookie dough to raise money for school supplies, field trips and an eighth-grade excursion to Washington. They peddle chocolate bars to help fund the yearbook.

But the sales won't be so sweet starting this fall. Campus bake sales—a mainstay of school fundraisers—are going on a diet. A federal law that aims to curb childhood obesity means that, in dozens of states, bake sales must adhere to nutrition requirements that could replace cupcakes and brownies with fruit cups and granola bars.

In an editorial criticizing this aspect of the law, the Santa Cruz Sentinel and Monterey County Herald quote Philip Howard’s The Rule of Nobody:

The rules governing what can be served and what can't be served are so convoluted as to be incomprehensible. Welcome to governing in 2014, when complex written rules are taking precedence over common sense in trying to solve complex health problems. In his new book, ‘The Rule of Nobody,’ writer Philip K. Howard explains it this way: ‘Rules have replaced leadership in America. Bureaucracy, regulation and outmoded law tie our hands and confine policy choices. Nobody asks, 'What's the right thing to do here?' Instead, they wonder 'What does the rule book say?'’

The editorial goes on to make a case for more flexible rules around school nutrition:

Childhood obesity is one issue that's crying out for leadership. Instead of putting the rule book in charge, why not empower schools and school districts to figure out best practices on their own? Childhood obesity is not a one-size-fits-all issue, and enforcing a law substituting grapes for a Snickers bar isn't going to miraculously cure the problem.

This isn’t the first time overzealous laws and regulations have stood in the way of getting food to the hungry, whether schoolchildren via bake sales or the homeless via soup kitchens. Public health is a legitimate concern—but that goal can sometimes be undermined, not promoted, by rules that bar homemade food from being prepared and served.

Comment ›

The Dawn of a New Political Narrative?

by Philip K. Howard

Newt Gingrich recently gave a speech at the Heritage Foundation in which he explained why government must be rebuilt, not fixed. The bureaucracy was invented about the same time as the manual typewriter, he explained, and still works in that clunky way. While an ATM machine can reliably distribute money to you and adjust your bank balance instantaneously, it takes the Pentagon 177 days to move a soldier’s health records to the Veterans’ Administration. “Nobody in the current system is allowed to think clearly about the scale of change that would be involved if you use modern technology.”

Government is stuck in paper-based organization. Federal employees’ pensions are processed by hand in a cave in Pennsylvania. Seriously. Permits for new businesses require trudging to a dozen or more different agencies. Matt Yglesias chronicled the mindless procedures required to rent out an apartment in DC. Because of all this clunky bureaucracy, the US now ranks 20th in the world in ease of starting a business.   

Efforts to bring modern technology into government almost always fail, however. One study suggested that only 4 % of federal IT projects were successful. Failure is virtually guaranteed for two reasons—first, the goal is almost always to automate the current system, not to rethink the underlying organization; and second, rigid procurement procedures do not permit the vendors to adapt to unforeseen circumstances. The disaster of the Obamacare roll-out—exacerbated by 55 separate vendors –was virtually preordained by a legislative mandate requiring the technology to sort out multiple separate healthcare entitlements for each person.    

The point here is not just efficient public administration. It is about historic overhaul. It’s hard to find a government program that isn’t broken—the only question is whether it’s broken 25% or 95%. Government is a huge pile of accumulated compromises and good intentions, implemented with all kinds of god-awful bureaucratic forms and requirements. Who reads all those forms? Should environmental review really take a decade? Should special ed really consume over 25% of the total K-12 budget? Do we need all those tax breaks for corporations? Or farm subsidies from the New Deal?

Newt’s speech is also notable for what it doesn’t say. The enemy in his speech is not government—everyone wants veterans to have health care. Indeed, as I argue in my new book (The Rule of Nobody), most government programs—including environmental review and special ed—are vital to our society. But the ineffectiveness of these programs is impossible to ignore.

Perhaps this is the dawn of a new political narrative. The current fault lines don’t get us anywhere, with Tea Party conservatives attacking the very idea of government, and liberals defending the virtuous aims of government without coming to grips with their pervasive semi-failures. 

The new enemy is ossification. Bureaucracy imbeds the status quo in legal concrete. Why doesn’t anything get fixed? Because it’s illegal to act sensibly. Balancing the budget is basically illegal because over half the budget is pre-committed to entitlements that don’t even come up for annual authorization. Rebuilding infrastructure on a timely basis is illegal because of interminable procedures and approvals. That’s why government must be rebuilt to make it work. This is what Jeb Bush is saying on stump—clean out the stables so government can focus on current priorities. Cleaning out decades of accumulated bureaucracy needn’t be a partisan argument. Do liberals really believe in a mindless trudge through endless bureaucracy?

The new aspiration is individual initiative. Liberate humans to roll up their sleeves and get things done. This includes liberating people within government, and rationalizing civil service so they can be held accountable. It shows how far government has degenerated when radical overhaul is required to restore the core assumption of democratic governance: individual responsibility and accountability. As Newt put it: “How do we rethink human activities to maximize the power of the individual and to profoundly replace the current structure?” 

Maybe there’s a crack in the door of our dark, acrid political culture.

Comment ›

Philip Howard Visits Fox & Friends

This morning, Philip Howard joined Fox & Friends to discuss broken bureaucracy and The Rule of Nobody. Watch the clip here:

Comment ›

Recommended Reading: “Government’s End” by Jonathan Rauch

by Benjamin Miller

More and more Americans are becoming aware that our political dysfunction stems from structural problems in modern democracy. Jonathan Rauch captured this idea in the 1990s with his superb book Government’s End: Why Washington Stopped Working. Expanding on Mancur Olson’s "collective action" hypothesis, Rauch argues that the accumulation of tightly-focused special interest groups around existing legal and bureaucratic structures creates an institutional inertia that is difficult to counter. This inertia, which he terms "demosclerosis," thwarts the public interest across virtually every area of government:

"Demosclerosis"—government’s progressive loss of the ability to adapt—is a gradual but continuing process. It is not like an acute fever, which attacks in a sudden crisis and galvanizes the immune system to respond with an all-out, decisive counterattack. It is more like hardening of the arteries, which builds up stealthily over many years. Like arteriosclerosis, it can be treated only by a long-term change in behavior: a disciplined regimen of self-reform. Also like arteriosclerosis, demosclerosis gets only worse if it is ignored.

By all appearances, demosclerosis has indeed been ignored. Even Rauch must be surprised by the unprecedented paralysis Washington would suffer two decades later.

Selfish special interests are widely understood to be substantial contributors to this paralysis. What is often overlooked in this assignation of blame, however, is our own participation in the collective-action nightmare. Rauch notes that it is not only corporate lobbyists and unions who may fight for their own interests at the expense of the public good, but that just about every association of citizens plays a part. And each one is likely to blame someone else for the problem:

In Washington you soon discover that everybody is a selfless public servant. Not only does everybody say so, but almost everybody believes it as well. One of the transfer-seeking game’s most wickedly ingenious defenses is that it allows every individual player to think that he is serving the greater good while everyone else is evil. The conceptual breakthrough comes when you realize that the parasite economy doesn’t care whether the people feeding it are vicious opportunists or high-thinking moralists; it thrives just as well either way. In the transfer-seeking game, motive doesn’t matter.

In other words, the road to paralysis is paved with good intentions. Every law and regulation creates new territory for special interests to protect. Even if a good reason originally existed for each one, their combined weight unbalances the scale of the public good. And long after they become obsolete, special interests cling to them, making them practically impossible to remove. Government needs to be able to balance national priorities within the constraints of available resources—a task whose difficulty is proportional to the number and strength of entrenched groups.

Fixing broken government doesn’t mean making government serve one’s own preferred purpose. So long as citizen groups approach reform with that mindset, we will continue amassing law upon law, policy upon policy, each providing some benefit to some small group, and all of them cumulatively preventing sensible long-term political decisions. Rauch identified this trajectory in the 90s; now it has come into full fruition, and it becomes more difficult to challenge day by day.

There is no one answer, no single petition we can sign or bill we can pass that will return our government to functionality. Breaking the paralysis demands a determined, concerted, and above all patient dedication.

Government’s End is a fantastic diagnosis (some might say autopsy) of our national political condition, one whose importance has only grown over the years since its publication. You can purchase it here.

Comment ›

Remembering Howard Baker

By Philip K. Howard

Howard Baker had a genius for getting to the nub of things. His question at the Watergate hearings, “What did the President know, and when did he know it?” became the touchstone of those historic proceedings. He didn’t present himself as a genius, of course. He just seemed practical. But when his words came out, in that gentle Tennessee drawl, they invariably re-centered the discussion.  

You never felt Howard Baker was making an argument, or debating you. He always seemed to be calling it as he saw it. That’s one of the reasons he had that rare quality—almost impossible to find in Washington nowadays—of moral authority. People trusted him. 

He was called the “great conciliator.” I’m not sure I like the description. Yes, he could bring people together. But it was not because he had a knack for splitting the difference, as, say, Henry Clay is remembered. I can’t imagine Howard Baker fashioning the Missouri Compromise. He had more principle than that. He obviously had a gift for seeing the merit of different positions, and was able to bring warring factions together. But in most cases, I suspect, he succeeded not by splitting the difference but by illuminating the merits of different positions. 

The obituaries don’t do justice to his personality. Howard Baker was fun. He loved telling stories, especially on himself. Soon after he was nominated to be ambassador to Japan (at age 75), I asked him how it happened that he decided to take the job. He recounted the story: “Well, I was at a dinner with the President, and he said, Howard, I need to you to be ambassador to Japan. Out of the blue. I said OK. When I got home that night, Nancy asked me how the dinner was, and I said it was nice. Also, that the President asked me to be ambassador to Japan. ‘What did you say?’ I said OK. ‘You said OK!!! Anything else?’ Nope. ‘Just OK? We’re going to pack up and move to Japan, and you just say OK?’” Later he recounted the bureaucratic idiocies of having to spend close to $100,000 in legal fees to prepare the ambassador’s financial disclosures (including the number of cattle owned by Nancy), and the hilarity of getting fitted for the required morning suit to meet the Emperor. 

Howard Baker loved life. He took his camera everywhere, and took photographs of historic events and natural beauty. He still owes me one. He and I had a shared interest in the history of dirigibles, those giant follies in the sky that floated around the globe in one brief decade of glory. He could shoot the breeze about almost any topic. He never lost the sense of wonder. 

Being friends with Howard Baker was life-enhancing. I got to know him almost 25 years ago when we were working on a law case together. He then became a sounding board when I was writing The Death of Common Sense. He opened doors for me (as a civic leader) to see the Postmaster General to try to convince him (amazingly, successfully) to surrender most of the Farley Post Office in NYC so it can be rebuilt as a new Penn Station. He signed up as an early member of the Advisory Board of Common Good. When I asked for help, he always said OK.

Comment ›

Central Park Jogger Civil Suit Settles—After 11 Years of Pre-trial

By James R. Maxeiner

The press is full of reports that the civil suit by the "Central Park Five" has been settled for $40 million. For readers who are not old enough to remember the original case from 1989, or have not seen Ken Burns’ 2012 documentary film on the case, I recap briefly. In 1989 a young woman was brutally raped in Central Park in New York City. Five innocent black and Hispanic teens were arrested, convicted, and sentenced to long prison terms. Finally, after serving many years in prison, DNA evidence exonerated the five in 2002. In 2003 they sued the City of New York.

Criminal law reformers rightly regard the settlement as an opportunity to revisit deficiencies in criminal law and procedure. These include questionable prosecutorial practices, long prison sentences, and trying juveniles as adults.

Court reformers should regard the settlement as an opportunity to revisit the civil justice system. Most reports fail to observe that the case was filed in 2003--over a decade ago. They assume such delay as a matter of course. New York is reported to have spent over $6 million and 30,000 hours on preparing its defense. The Central Park Five case makes Jarndyce v. Jarndyce in Charles Dickens’ Bleak House look like litigation at lightening speed and modest cost.

How much time should a civil lawsuit take? Not eleven years: not ever! Not a tenth that, the former President of the American Bar Association, David Dudley Field, Jr., told the Bar 125 years ago. Field thought a three-and-one-half year lawsuit (over the estate of presidential candidate Samuel J. Tilden) represented a "scandalous" delay. That is downright fast in Central Park standard time.

How much time should a lawsuit take? Not more than one year, Field eloquently said:

There is no reason in the nature of things why any lawsuit, if the witnesses are within the jurisdiction, should not be determined within a year from its beginning. When a litigation has run through the four seasons, it has run long enough. Twelve months are as long as an American citizen should be obliged to wait for justice, and I think it should be deemed a fundamental precept to all lawgivers and ministers of the law, that the judicial force be so arranged and the methods so contrived that the end of the year from the beginning of the process shall see the end of it.

Presently the American judicial force is not so arranged and its methods are not so contrived as to accomplish such a feat. It is time that they were. Those people who run our courts need to get judges to take responsibility for the cases assigned to them so that those cases are determined in a reasonable time: four seasons.

Comment ›

 1 2 3 >  Last ›