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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 Perils of Legal Certainty

Howard's Daily by Philip K. Howard

You will profit by reading philosopher Simon Critchley’s recent reflection on Dr. Jacob Bronowski and the dangers of certainty. People who think they possess a final truth, driven compulsively towards their view of certainty, often cause evil, whether they're religious fanatics like Savonarola or, as Bronowski discusses, the officials who devised the Final Solution.

A responsible human must look life in the eye, open to the moral and factual uncertainties presented by many choices in human dealings. Critchley: "There is no God’s eye view, Dr. Bronowski insisted, and the people who claim that there is and that they possess it are not just wrong, they are morally pernicious. Errors are inextricably bound up with pursuit of human knowledge, which requires not just mathematical calculation but insight, interpretation and a personal act of judgment for which we are responsible."

Applying this principle of human responsibility for moral choices has applications throughout the range of human endeavor. (See this thoughtful essay by Roger Berkowitz of the Hannah Arendt Center at Bard College). Let’s look at law for a minute.

Legal certainty is accepted orthodoxy. Of course law should be certain, we have been taught. Only then will people know what’s expected of them, and not be fearful of arbitrary officials. In pursuit of certainty, laws have become ever more detailed. The new Volcker Rule regulating proprietary trading by banks is almost 1,000 pages long. The Affordable Care Act is almost 3,000 pages long. Nursing homes are typically regulated by 1,000 rules. In total, there are over 100 million words of binding federal law, and several billion words of state and local law. 

Do all these detailed dictates achieve certainty? Of course not. Law is an unknowable jungle. Does all this law safeguard us against arbitrary officials? No, it’s a legal minefield. No one can comply with it all. We’re at the mercy of the state. Does all this detailed law make government a well-oiled, smoothly-running machine? HELP!! There’s hardly any program, even the best of them, that doesn’t waste vast resources in bureaucratic nonsense.

Public solvency is basically illegal in America. All this detailed law prevents the president, and any governor, from making the choices needed for fiscal responsibility. 

Our obsessive quest for legal certainty has left our society, ironically, in a very uncertain state. The only cure is to abandon legal certainty and embrace human responsibility as the operating philosophy for most activities of government. 

Canadian management theorist Brenda Zimmerman makes the distinction between activities that are "complicated"—like engineering, or rocket launches, or surgery—and activities that are "complex"—such as raising a child, or running a healthcare system. Complicated activities profit from detailed rules, checklists, and protocols. Complex activities require balance, and tradeoffs, and moral choices. Detailed rules cause failure.

Law can support a free society, I argue in my new book (April), only when it abandons this obsessive quest for certainty. Law should instead set goals and principled boundaries, leaving room for humans to make practical and moral choices. Real people, not rules, make things happen. Automatic government is a false philosophy. Democracy is supposed to elect people to act on their vales, not to avoid them by mindlessly applying detailed rules. Of course people will sometimes abuse this trust. Look at the George Washington Bridge lane-closings. But officials there are paying the price. The worst system is one where things fail, and there’s no one to hold accountable. That’s what we have today: The Rule of Nobody. As Jacob Bronowski passionately explained, avoiding human responsibility is the root of much evil.

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Let Kids Play

Howard's Daily by Philip K. Howard

Notions of "appropriate" play are thrown out the window in this amazing video footage from New Zealand. Kids run around, tackle each other in a game called "bullrush," ride scooters over ramps, climb trees, and—gasp—point sticks like guns. Then they go back to class where, the principal says, they are able to focus on schoolwork. (Thanks to David Webb for finding this video.)

In America, by contrast, schools ban games like tag, or even running at recess. So it’s hardly surprising that there’s an epidemic of ADD. Playgrounds are stripped of any implements that might involve risk—such as merry-go-rounds and jungle gyms. Small wonder there’s a crisis of obesity when it’s more challenging to play video games on the sofa than to go to a playground with no challenge at all.  

Child development experts repeatedly say that it is vital for children, for mental as well as physical development, to deal with normal risks of childhood. (I compiled much of this material in "The Freedom To Take Risks" chapter in Life Without Lawyers.) Coddling children makes them less safe in the long run, because they will be less able to deal with real risks later in life. As the New Zealand principal points out, learning how to handle risk early on makes a young student less likely to take too much risk when he gets a driver’s license.

Letting kids in America play again requires an organized effort. Today, the most innocent accident can mean an expensive lawsuit. That’s why the school board in Broward County, Florida banned running at recess. And, worse, American culture has changed. Parents and educators no longer have an instinct for what's an appropriate risk. Avoiding risk has become an obsession. Safety is only half an idea; the question is what we’re giving up to get it. If children are raised without skills to cope with life, we are increasing risk, not reducing it.

Perhaps what’s needed is a presidential commission on the appropriate risks of childhood. By restating common sense principles, America could then empower judges (as well as parents) to affirmatively embrace healthy risks so that kids can, well, go back to being kids again.

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Want Jobs (and a Green Infrastructure)?

Howard's Daily by Philip K. Howard

Rebuilding America’s infrastructure, as President Obama emphasizes, is a top national priority. The benefits include several million jobs, enhanced competitiveness, and a greener footprint. But it can’t happen, as I and others have written, until America fixes its broken legal approval process. Approvals drag on for years, sometimes decades. 

This past week, another lawsuit was filed to try to stop a project to raise the roadway of the Bayonne Bridge. The project has undeniable environmental and economic benefits—allowing a new generation of cleaner, more efficient post-Panamax ships access to Newark Harbor. (See Sam Roberts’ "High Above the Water, but Awash in Red Tape.")

Nor does the project involve any of the usual new infrastructure dislocation—the bridge’s foundations are untouched, and rights of way remain in the same place. The roadway is simply being raised within the existing bridge arch. 

But the project does involve construction, and a Staten Island group has sued alleging civil rights violations because their neighborhood, six blocks away, will have to deal with whatever effects there may be from increased construction activities. (See "Staten Islanders File Civil Rights Complaint Against Bayonne Bridge Project.") Lawsuits like these are a formula for social paralysis.

On Tuesday the lead story of The Times of London described a proposal to minimize similar NIMBY lawsuits which have also stalled large projects in Britain. The government proposal would create a special court to hear complaints on an expedited basis. The proposal would also apparently limit "standing" to sue to people or groups who have a financial interest being affected.

Similar ideas were suggested at a recent forum on redesigning infrastructure approval co-hosted by Common Good and the Regional Plan Association. Instead of drawn out court proceedings, why not give an official at EPA authority to decide when there’s been enough review? Why not limit lawsuits to substantive violations of law, not second-guessing policy decisions? These are not generally legal decisions, but ones that should be accountable politically. Special courts, with expedited proceedings, also seem like a good idea. Legal paralysis is not a formula for a healthy society. America needs to get moving.

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The Bureaucratic Canary Is a Person

Howard's Daily by Philip K. Howard

"Andrea Rediske’s 11-year-old son Ethan, is dying. Last year, Ethan, who was born with brain damage, has cerebral palsy and is blind, was forced to take a version of the Florida Comprehensive Assessment Test…. Now his mom has to prove that Ethan, now in a morphine coma, is in no condition to take another test this year." This is the lead in a blog entry from yesterday by the Washington Post’s Valerie Strauss.

The federal special education law known today as IDEA was enacted in 1975 to remedy the abuses of special needs children locked up in cruel institutions like Willowbrook. But laws tend to take a life of their own, and the broad legal mandate for special education—requiring "free appropriate public education" in the "least restrictive environment"—leaves little room for judgment or balance. 

Over the past 40 years, special education has become a bureaucratic jungle—where everyone is so tangled in legal vines, and scared of legal claims, that there is no room to do what’s right. Last year in Florida a 9-year-old boy who is blind and born with only a brain stem was forced to submit to a test where instructors asked him to identify pictures. As a school board member commented: "He’s blind. And they’re showing him pictures of a giraffe, a monkey and an elephant—and asking him which one is the monkey…. I'm watching all this and just about to lose my mind."

The absurdist quality of testing children in a coma or born without a brain exposes a regulatory system that has lost the oxygen of common sense. All kinds of bad choices emerge from the self-contained bureaucracy. Some principals say they spend as much as half their time dealing with special ed legal demands. The learning of other students is compromised when uncontrollable, sometimes violent, children, are mainstreamed based on their parents’ legal demands. Wealthy parents have the legal right to demand school districts pay for private schooling—sometimes at a cost that exceeds $100,000 per year. 

How much does all these special ed entitlements and bureaucracy cost? Special ed now consumes over 25% of the total K-12 budget in America, for a tiny proportion of students who actually need it. Meanwhile, there’s almost nothing in programs for gifted students—less than 1%. Nor is there any material budget for pre-K education, which is why New York Mayor de Blasio campaigned for new taxes on the wealthy—which would almost certainly drive some taxpayers out of the jurisdiction. Who made the decision that this special ed spending is the right balance of school budgets? No one. No one is even asking the question. 

Gosh, say defenders of the status quo, we wouldn’t want to go back to the bad old days. But our choice isn’t between cruel neglect and bureaucratic excess. The goal is always balance. As I described in my last book (Life Without Lawyers), countries such as Denmark provide robust special education services in the context of balancing the needs of all students. The difference there is that officials have the responsibility to use their judgment in each situation, not follow mindless mandates.

America’s special ed system is not just unwise, or inefficient, or absurdist. It is immoral. It is immoral not in its broad goals, but in its implementation. It is immoral to give disabled students a Rolls-Royce budget and give all other students what’s left over. It is immoral to treat grieving parents as bureaucratic boxes on a checklist.  

In a recent e-mail seeking relief for her dying son from Florida’s assessment requirements, Andrea Rediske wrote: "Every day that [the special ed teacher] comes to visit, she is required to do paperwork to document his ‘progress.’ Seriously? Why is Ethan Rediske not meeting his 6th-grade hospital homebound curriculum requirements? BECAUSE HE IS IN A MORPHINE COMA. … This madness has got to stop."

The IDEA is expected to be reauthorized as soon as next year. It’s not hard to figure out why there’s no political champion for overhaul. Who wants to incur the wrath of special ed parents who, understandably, want everything possible for their children? But this madness has to stop.

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When Compromise Is Not the Answer

Howard’s Daily by Philip K. Howard

Polarized politics is one symptom of our broken democracy. But compromise is not necessarily the answer either, as epitomized by the new $1 trillion farm bill. New Deal-era crop subsidies were obsolete by 1941, when America’s entry into WWII created inexhaustible demand for food and other crops. Yet both parties, holding hands in the name of comity, have continued these obsolete subsidies for over 70 years—now mainly going to large corporate farms. The new bill eliminates direct payments while increasing crop insurance supports, hoping Americans won’t notice that money is fungible.

For government to function, democracy must be able to set new priorities—changing what doesn’t work or isn’t needed, as well as meeting new needs. Sometimes democracy can add new programs, as with Obamacare. But it seems incapable of getting rid of the old ones. This is not sustainable.

Compromise is not the answer. Holding hands does little good when driving over a cliff. America needs a new vision of how to clean up old programs. See the discussion on obsolete law at "America the Fixable" (Common Good’s 2012 series at theAtlantic.com).

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A Better Conservative Critique

Howard's Daily by Philip K. Howard

Today’s mainstream conservatives are predictably anti-big government—a theme that ignores how government oversight is often essential to freedom in an interdependent society. Just as freedom requires cops on the street, so too it requires inspectors to safeguard against unsanitary restaurants and dingy nursing homes.

But in two columns over the weekend, a new conservative critique emerges that I believe is more accurate. In "Meanwhile, Back in America …", Peggy Noonan discusses the gap between the rhetoric of the State of the Union speech, and the reality of Big Brother in people’s daily lives. The main flaw as I see it is not in government’s aspirations, but in its implementation. It is not hard to imagine government that allows practical choices on the ground, or accommodates different values. But instead it clings to a one-size-fits-all approach that sues to end a school voucher program in Louisiana because it is successful in helping motivated minority students escape awful public schools.

Joseph Rago’s interview of Sen. Tom Coburn reveals a conservative as fed up with right-wing special interests as with those of the left. Sen Coburn has concluded, clearly correctly in my view, that "I don’t think Washington can fix Washington." The culture of government is dedicated to itself, not to the society it supposedly serves. It is too inbred, too paralyzed in accumulated laws, as I argue in my new book (The Rule of Nobody, April). What’s needed is an outside movement to force a dramatic spring cleaning and resetting of priorities. Think the 1960s. The villain is not Bull Connor but a suffocating, unaffordable bureaucratic blob feeding special interests on all sides.

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Fair Regulation Requires Human Judgment

Howard’s Daily by Philip K. Howard

Perhaps it’s fitting that Madison County, Illinois—where trial lawyers roam the courts like gunslingers—is now also a symbol of bureaucratic excess. This week Madison County authorities shut down the fledgling cupcake business of 11-year-old Chloe Stirling (“Hello, Cupcake!”), because health department rules require her either to purchase a commercial bakery (hmm, that’s practical) or to have a dedicated kitchen (ditto). Chloe’s cupcake business now is tossed onto the scrapheap of neighborhood activities, such as children’s lemonade stands, soup kitchens, and school fundraisers that, inevitably, conflict with cast-iron bureaucratic rules that loom over our (supposedly) free society.

The flaw here is the notion that regulatory oversight requires one-size-fits-all. The main public purpose of health regs is to avoid poisoning people, an undeniably worthwhile goal. But regulators should focus on the goal, not rule micromanagement. Officials must have flexibility to make exceptions for life’s little activities—at least until a real problem emerges. Yes, giving officials flexibility can sometimes lead to problems, as with certain police practices. But if police enforced every law literally, most of us would be in jail for jaywalking. It is impossible to regulate society fairly and sensibly without human judgment. Chloe Stirling is only the latest example of America’s flawed governing philosophy. See generally www.commongood.org.

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Law Should Support Moral Choices

Howard’s Daily by Philip K. Howard

Law is supposed to support a free society. Instead, increasingly, “following the rules” prevents people from doing what’s right. This week a lifelong employee of the Washington, DC parks department, Medric Mills, died of a heart attack in front of a DC fire station when the firemen refused to help. The firemen apparently believed they were "following the rules." They were only allowed to respond to 911 calls—not the reality of a person dying at their doorstep. Or, they had to "get permission" from a supervisor before intervening. An investigation is underway.

A few years ago, hospital staff in Chicago refused to help a young man dying of gunshot wounds in the hospital driveway because of a rule that they were not allowed to leave the hospital building. In 2011, firemen watched a man drown in California because they hadn’t been re-certified in “land-based waters rescues.”

Law should support, not supplant, moral choices. American law has instead become a kind of obsession. The solution, as I argue in The Rule of Nobody (out in April), requires a fundamental rethinking of how law is structured: People need to be accountable for the reasonableness of their actions, not mindless compliance with detailed rules.

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Let’s Build, America

Howard's Daily by Philip K. Howard

No economic fruit is larger, or lower hanging, than rebuilding America’s decrepit infrastructure. Several million jobs could be added. American competitiveness would be enhanced. Public and private investors would be repaid handsomely ($1.59 on each $1). America's environmental footprint would be greener. All that’s needed to get all this is…end legal paralysis.

Other “greener” countries approve large projects in a year, two years at most. In America the time frame can stretch into decades. (Read my recent Wall Street Journal op-ed, “Why It Takes So Long to Build a Bridge in America”.)

Once again President Obama highlighted this gargantuan opportunity, saying in last night’s State of the Union address:  "I will act on my own to slash bureaucracy and streamline the permitting process for key projects, so we can get more construction workers on the job as fast as possible." But this has been his priority for five years. Every effort to cut through the process has been replaced by new models of more process.

There’s a missing link: Some environmental official needs to have the job of deciding when there’s been enough environmental review. Don’t trust him? Give another official or committee the job of second-guessing him. Otherwise the process goes round and round forever. Then it’s litigated for years by whoever doesn’t like the project. We’ll never build anything on a timely basis until we scrap this headless system.

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For Better Schools, Overhaul School Discipline

Howard's Daily by Philip K. Howard

Unfair school discipline is good for no one and corrodes school culture, as today’s Washington Post feature suggests.

Schools should indeed have alternative settings so that disruptive students are not just cast onto the streets. But the core defect is solved not by tweaking the elaborate legal code—such as notoriously rigid "zero tolerance" rules—but by scrapping most legal controls.

The focus on racial disparities in discipline ignores the greater harm of racial disparities in learning—how can anyone learn when there's chaos in a classroom? America needs a complete overhaul of the school discipline system, giving back teachers and principals the authority to act immediately when confronted by disruption and to achieve fairness by using their judgment in context, and safeguarding against unfairness by human checks and balances—say, a student-parent complaint committee. 

Formal legal due process in schools has proved to be a disaster, like pouring legal acid into what is supposed to be a culture of learning and sharing. (See Judging School Discipline by Professor Richard Arum.)

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