Posted 4/7/14 by Common Good
In the Wall Street Journal, Stuart Taylor writes that Philip Howard's new book The Rule of Nobody "shows how federal, state and local laws and regulations have programmed officials of both parties to follow rules so detailed, rigid and, often, obsolete as to leave little room for human judgment." Taylor continues:
Mr. Howard serves up a rich menu of anecdotes, including both the small-scale activities of a neighborhood and the vast administrative structures that govern national life. After a tree fell into a stream and caused flooding during a winter storm, Franklin Township, N.J., was barred from pulling the tree out until it had spent 12 days and $12,000 for the permits and engineering work that a state environmental rule required for altering any natural condition in a "C-1 stream."
Read the full review here.Comment ›
Posted 4/7/14 by Common Good
"Words can't create fairness. It's goals and principles and people applying them that creates fairness and adequacy."
That's from Luke Johnson's interview of Philip Howard on the Huffington Post about Howard's forthcoming book The Rule of Nobody. Philip discusses the perils of micro-regulation, obsolete law, and the paralytic government culture of Washington. Here's an excerpt from the interview:
One of the phrases that struck me in the book is that "American Democracy is basically run by dead people." What do you mean by that?
The important decisions made by our government have been preset in legal concrete by statutes and regulations written in past generations and not altered for decades.
Special education, which is a really important law, but has had the unintended consequence of ballooning into about 25 percent of the total K-12 budget. There's none left over for programs for gifted children or pre-K education. Is that the right balance? No one is even asking the question.
It was a statute written in a certain way 40 years ago and that's just the way it works. It's like a runaway train.
You say "No one in Washington is asking what the right thing to do is." What do you mean by that, specifically?
I think Washington has become its own bubble, its own culture, separated by the Beltway from the rest of the country. It's mutated into a perpetual tug of war, where political leaders get up in the morning not trying to do anything constructive but just make the other side look bad.
The other people in Washington, lawyers, lobbyists and journalists, play their role in dealing with this perpetual tug of war, and nothing much happens. It's this paralytic political structure without any significant connection to the real needs of the country. I think it's a profoundly sick and dysfunctional political culture much worse today than it was even 30 years ago.
I don't think the problem is so much bad leadership or even polarized politics. I think those are symptoms of a structural powerlessness, where the combination of the accretion of law, the influence of special interest money, has made it so hard to change a law or to change directions that people have really given up.
Read the full interview on the Huffington Post.Comment ›
Posted 3/28/14 by Philip K. Howard
Howard’s Daily by Philip K. Howard
A learning environment in schools requires safety and order. "Zero tolerance" rules, which first surfaced in the early 1990's, were intended to guarantee safety. School cultures had corroded in the wake of the "due process revolution," and absolutist rules were intended to shore up principals’ authority to act promptly in the face of violent or anti-social behavior.
But the rigid legal approach exemplified in zero tolerance rules has instead fostered a downward spiral of cynicism and legalisms. The worst offenders still argue over discipline—can you prove it? Meanwhile, every few weeks, there are news reports of children suspended for harmless activities: for example, the first-grader suspended for kissing a girl’s hand, or the seventh-grader suspended because she had "possession" of a pill for one second (before she immediately rejected it), or the honors student expelled because a kitchen knife was in the bed of his pickup truck (it had fallen out while he was helping his grandmother move), or the second-grader suspended because he munched his pop tart into the shape of a gun.
Zero tolerance rules have become a standing joke—a reflection of educators’ lack of authority, not a useful tool of school order.
Now comes the Florida legislature with a bill, sponsored by the National Rifle Association, to supposedly solve the unfairness of rigid zero tolerance rules. Its first flaw is that the bill fights the scourge of "overlegalization" with more legalisms. It requires every school to come up with a detailed code of conduct. Its second flaw is that it is transparently designed to serve the NRA agenda, not the unfairness of rigid rules. Here is an excerpt of the NRA’s mono-minded proposal:
Simulating a firearm or weapon while playing or wearing clothing or accessories that depict a firearm or weapon or express an opinion regarding a right guaranteed by the Second Amendment to the United States Constitution is not grounds for disciplinary action…. Simulating a firearm or weapon while playing includes, but is not limited to:
1. Brandishing a partially consumed pastry or other food item to simulate a firearm or weapon.
2. Possessing a toy firearm or weapon that is 2 inches or less in overall length.
I especially like the reference to the Second Amendment—do children worry about a constitutional right to bear arms?
Let’s start again. Fairness almost always requires context. Unilaterally kissing a girl may be excusable in a kindergartner but not in a high school senior. Brandishing a switchblade is different than accidentally leaving a kitchen knife in the bed of a truck. Making a drawing of a gun is different than bringing a gun. That’s why zero tolerance rules are counterproductive, fostering a culture of legal argument instead of being tethered to community norms of right and wrong.
Fairness, in other words, always requires human judgment. Educators must get their authority back. That doesn’t mean they can do anything they want. It is easy to have, say, a teacher-parent committee, or even a student committee, to look at charges of unfair discipline. But only in the most extreme cases should school discipline end up in a legal proceeding. Students are being sent home, not to jail.
As a first step to a solution, instead of using the silliness of zero tolerance as a vehicle to advance one agenda, it would be more constructive to come up with a model statute that restores common morality to disciplinary decisions. Several years ago, Texas repealed its zero tolerance regime, requiring instead that educators consider factors like a student’s intent when making disciplinary decisions.
Here is my proposed model statute:
"Notwithstanding any rule, including zero tolerance rules, a principal shall have no legal obligation to discipline a student where circumstances are such that the principal believes discipline would be unjust or unfair."
A statute like this would obviate the overreactions to students playing cowboys or soldiers, and also all other rigid overreactions. Bad law should be fixed, not used as a vehicle for self-interested propaganda.Comment ›
Posted 3/26/14 by Common Good
The 2009 economic stimulus package promoted by President Obama included $5 billion to weatherize some 607,000 homes—with the goals of both spurring the economy and increasing energy efficiency. But the project was required to comply with a statute called the Davis-Bacon Act (signed into law by President Hoover in 1931), which provides that construction projects with federal funding must pay workers the "prevailing wage"—basically a union perk that costs taxpayers about 20 percent more than actual labor rates. This requirement comes with a mass of red tape; bureaucrats in the Labor Department must set wages, as a matter of law, for each category of construction worker in each of three thou- sand counties in America. There was no schedule for "weatherproofers." So the Labor Department began a slow trudge of determining how much weatherproofers should be paid in Merced County, California; Monmouth County, New Jersey; and several thousand other counties. The stimulus plan had projected that California would weatherproof twenty-five hundred homes per month. At the end of 2009, the actual total was twelve.Comment ›
Posted 3/25/14 by Philip K. Howard
Howard's Daily by Philip K. Howard
In Plato’s Republic, Socrates tells an allegory in which people imprisoned in a cave see only the flickering shadows of objects, animals, and humans reflected on cave walls. This is their reality. When one prisoner is released, and forced into the daylight of reality, his first instinct is to retreat back into the safety of the cave and its two-dimensional image of reality. When he then accepts the truth and returns to enlighten the other prisoners, they are threatened by the idea that reality is different than the flickering images, and won’t accept the truth when the first prisoner returns.
Federal bureaucracy is a cave. Its reality consists of flickering images of decades of accumulated rules, often with no line of sight to a real world goal. Those rules require public employees to act in ways that are nonsensical—say, delaying vital infrastructure to study issues that have no conceivable bearing on the project. Rules sometimes trump morality. But rules are the only reality for those within the cave. Secluded in the darkness of federal bureaucracy, that’s all they see.
This metaphor, it turns out, happens to be a literal description of part of federal bureaucracy. An amazing report by David Fahrenthold in the Washington Post, "Sinkhole of bureaucracy," describes a huge cave in Pennsylvania, over 200 feet underground, in which 600 federal employees process retirement pensions of federal employees. In a world where computerized personnel systems are readily available to small businesses, all these government files are processed on paper, by hand. "The employees here pass thousands of case files from cavern to cavern and then key in retirees’ personal data, one line at a time," writes Fahrenthold. "They work underground not for secrecy but for space." The cave contains over 28,000 five-drawer file cabinets.
There have been sporadic efforts to automate the federal retirement system over the past 30 years, but all have failed. The last failed effort cost over $100 million.
Why can’t government fix itself? The Washington Post report targets two possible villains. The first is ineptitude—over 40% of IT procurement projects end in total failure. The botched rollout of the Affordable Care Act, by the way, falls into the 60% of partially successful projects. The second villain is the accumulation of twisted legal vines, as one interviewee put it, caused by "one hundred years of bad laws." The pension rules are so complex, with so many exceptions, that all efforts to systemize them end up blowing fuses.
What’s the moral here? Government can’t be repaired unless the legal framework is radically simplified, as I argue in my new book (The Rule of Nobody) (April). Legal accretion guarantees failure. Imagine if you had to manage a business by following every rule or procedure that any prior manager had ever put in place.
Like the prisoners in Socrates’s cave, federal officials accept existing law as a state of nature. They do whatever the flickering complexities tell them to do, whether or not they are sensible. The subculture within the cave is devoted to maintaining the status quo—for example, public employee unions view their job as preserving the myriad perks. As in Socrates’s parable, everyone fears change.
Solving the problem is not hard, at least not if you have freedom to invent a rational system. Paying pensions to retirees, after all, is not rocket science. What’s needed is to walk out of the cave and face our public challenges anew. It’s hard to find a government program that doesn’t need a fresh makeover. But, as failed efforts to automate pensions show, this is not a simple repair job. We must confront the magnitude of rebuilding the underlying legal structure. Almost nothing about government can get fixed without first leaving the dark bureaucratic cave, and then reconstructing law so that officials are able to meet the challenges of our new century.Comment ›
Posted 3/21/14 by Philip K. Howard
Howard's Daily by Philip K. Howard
“The Overprotected Kid,” Hanna Rosin’s excellent article on children’s play in The Atlantic, should be required reading for all parents. The starting description of a play area in Wales—where children wallow in mud, try to swing over a creek on a rope (and often fall in), and even start fires to warm themselves—will be a form of shock therapy for parents who have been conditioned to think they would go to jail for permitting any of these activities.
America’s obsession with safety, as I and others have written, has stunted children’s development. It has made play so boring that American children spend hours on the sofa with their video games, contributing to the crisis of obesity. Hovering parents eliminate the excitement and mental stimulation of children taking responsibility for themselves.
By overprotecting our children, experts have concluded, we have subjected them to the far greater danger of not being able to cope with the real risks of adulthood. They will grow up to compete with children from other countries who will be more resourceful, and, indeed, if studies are correct, even mentally sharper, than they are.
Safety is a natural urge. Humans are wired to stay in the safety of a cave if hunger doesn’t drive us out into the daylight and risks of the real world. I debated someone on children’s safety at Yale Law School a couple of years ago who scoffed at the ludicrous suggestion that children should be encouraged to manage risk on their own.
But safety is only half an idea. The question is what we’re giving up to get it. Wrapping children in bubble wrap will prevent scraped knees and broken legs. But it will also suffocate them. That’s what America is doing to our children. Don’t believe me or even Hanna Rosin. Look at the work of Joe Frost, Stuart Brown of the National Institute for Play, Tim Gill (in the UK), Richard Louv (about children and nature), Darell Hammond of KaBOOM!, and Lenore Skenazy.
How do we right this ship? In America’s lawsuit-obsessed culture, any accident is sure to result in litigation. Defensive play is standard operating procedure. That’s why some schools ban running at recess, and tag. Dodgeball is almost a capital crime. The cure here is a dramatic shift in law: American courts must bar lawsuits over children’s accidents unless the judge (or an expert panel) decides that the activity or circumstances posed unreasonable dangers. The standard must no longer be avoiding risk—risk is often healthy, and attracts children at the same time as it helps them develop resourcefulness. The correct standard is unreasonable danger. Accidents will happen. That doesn’t mean someone did something wrong.
There’s also a cultural challenge. Parents have no clue anymore what’s right or wrong. Just this week, Darell Hammond and I decided to jointly pursue a project to change public perceptions. The safety police have had the tiller for far too long. It’s time to take it back, for our children’s sake.Comment ›
Posted 3/21/14 by Common Good
As law reformer Arthur Vanderbilt once reminded us, courts should serve litigants. Now the Upper House of the German legislature (the Bundesrat) has a remarkable proposal for doing just that: conduct and decide cases in English.
The high quality of German civil justice is widely known, but international litigants are often discouraged from conducting litigation in German courts because they don’t speak the language. This draft law would authorize special international panels that would act in English.
The justification accompanying the draft law addresses some important points:
- Using English proceedings will make German courts more attractive to international litigants.
- Many German judges already have high levels of English proficiency thanks to study abroad.
- Appellate panels and even the Supreme Court would be allowed to conduct proceedings for these cases in English.
- Since two thirds of Germans know English, these proceedings will still be widely accessible to the public.
This procedural change could indirecly benefit the American civil justice system as well. Were German courts regularly operating in English, the lessons of their successful system would be more visible to American observers.
One lesson we can already take from this reform: Legislatures and courts both can and should make life easier for litigants. Why doesn’t this happen more often in the U.S.?Comment ›
Posted 3/20/14 by Philip K. Howard
Howard's Daily by Philip K. Howard
This is the week of the TED conference in Vancouver. As a former speaker there I’ve gotten to know some amazing participants. What they seem to have in common is self-empowerment. They view themselves as inventors, not only of products but of their own lives and beliefs. TED talks inspire people not only because of the particular topic but because of the demonstration of individual initiative on display.
Individual self-determination is harder to accomplish in the modern world of big business, big government, and bureaucracy everywhere. We have the tools of instant knowledge but fewer obvious ways to act on that knowledge in an individually creative way. Young people come into the job market and find themselves in jobs hemmed in by high walls of established corporate protocols. Retirees can’t find cracks in the bureaucratic walls to make a difference in their communities. They’re not “certified” to teach or provide hospice care. The municipality insurance doesn’t cover volunteers.
This airless, over-organized world can discourage people. Professor Barry Schwartz made the point that a structure can change people. They involuntarily adopt its values. People stop asking what’s right, and just follow rules. They even watch people die because the rule says they should ”get permission” to help rather than acting themselves, as we saw recently in DC.
Arianna Huffington has an inspirational new book, Thrive, which exhorts people to make choices about their personal priorities. Maybe it seems like the world around you demands that you give up your personal life for success, but don’t buy it, she says. Personal fulfillment comes from deliberate choices about what you value. Individual initiative starts are home. She’s right, and her breezy, self-confident sermon about life’s meaning, addressed mainly to women, comes at a time when both men and women are under enormous pressure to sacrifice basic joys and needs to the demands of the workplace.
David Brooks is also on this beat. His sermon, delivered yesterday at TED, suggests that we’ll never get the leadership we need to pull ourselves out of this cultural and bureaucratic rut until we stop listening to the muse of raw ambition and begin listening to our souls about what is right and what is wrong. Only with humility and a sense of uncertainty can we face honestly the imperfect choices needed to move forward responsibly. Here too, the answer lies in self-discovery and a commitment to self-determination.
The problem here is not just that people are discouraged from self-determination. Modern society is organized to avoid human choice. Ever-more-detailed rules are designed to prevent people from acting on their own sense of right and wrong. Leadership might as well be illegal. What does the law allow? A giant bureaucratic blob has paralyzed the halls of power as well as the nooks and crannies of our lives. The solution, as in our personal lives, is to seize back these choices. But reclaiming democratic self-determination is not a matter of personal will, but of an organized movement to rebuild government into a structural framework based on human responsibility. Self-determination is indeed the secret sauce of fulfillment, as Arianna Huffington’s new book makes clear. That truth applies equally to the structures of our democracy.Comment ›
Posted 3/18/14 by Philip K. Howard
Howard's Daily by Philip K. Howard
Courtesy of an excellent daily compilation service called Muhr’s Must Reads, I read an essay titled "The Regulatory Confidence Cycle," by Harvard Law Prof. Mark Roe. Professor Roe warns against complacency in thinking that Dodd-Frank has shielded the economy against financial crisis like that in 2008. "Like generals fighting the last war," he warns, the protections of new regulations will not necessarily guard against new crisis.
He’s correct to a point: Regulations by themselves will almost never guard against abuse, any more than an automatic alarm system is foolproof protection against wrongdoers. Effective regulatory oversight always requires vigilance and human judgment. In the mortgage bubble crisis, pretty much everyone was asleep at the switch, relying on triple A ratings and other "objective" indicia of stability when any alert person would see that the loans were garbage.
But the deeper problem of post-crisis regulation is that it is often counterproductive. Regulations always have unintended consequences. They cost money; they divert compliance and management energy to rote compliance rather than alert oversight. Dodd-Frank is so complex and expensive, industry insiders tell me, that it drives small banks into the arms of larger banks, arguably exacerbating system-wide risks. The real Maginot Line created the harm of complacency; regulatory Maginot Lines can cause failure by forcing people to do things that make no sense.
The more detailed the regulation (Dodd-Frank is 850 pages; the Volcker Rule is 950 pages), the sooner and more counterproductive the unintended consequences will appear. The goal should be to focus on regulatory goals, not mindless compliance. Regulators and management alike should be always alert to new facts and trends. This is why an ideal regulatory structure, as Bank of England economist Andrew Haldane proposed in his speech "The Dog and the Frisbee," is one that is made up of broad goals and principles, not detailed prescriptions.
To guard against the next financial crisis, the first task is not to rely upon Dodd-Frank, but to go back and radically simplify it.Comment ›
Posted 3/17/14 by Philip K. Howard
Howard's Daily by Philip K. Howard
Real people, not rules, get things done. Rules exist to prevent bad conduct (thereby enhancing our freedom). Legal protocols, such as speed limits and contract law, allow people in a crowded society to move around without crashing too much. Organizational systems in companies, hospitals and schools can help mobilize humans to build products and provide services.
But only humans, individual people, make anything happen. Whether a school, hospital or business succeeds always hinges on the commitment, skill and judgment of the people. Government too requires individual initiative.
American history can best be told as a story of individual accomplishment—not just inspirational political leaders, such as Washington or Lincoln, but social leaders such as MLK and, especially, innovators in every aspect of commerce and society—from Fulton to Edison to the Wright brothers to Gates.
Jack Kinzler, longtime head of Technical Services at NASA center in Houston, died this past week at age 94. He famously rigged up telescoping fishing poles to figure how to build a replacement heat shield for the Skylab. He also fabricated the 6-iron which Neil Armstrong took to the moon. Reading the New York Times obituary, you can practically see the twinkle in his eyes when confronted with technical difficulties. Oh, and this legendary NASA genius never attended college.
Modern culture is not friendly to individual initiative. The dramatic exceptions, such as Steve Jobs or others in technology, only prove the rule. Sociologist Robert Bellah and colleagues spotted this trend a few decades ago, when they found that Americans increasingly consider freedom to be the freedom to be left alone, not the freedom to do things. We are free to aspire to flat screen TVs in every room, but not, say, to start a business or to volunteer at the local school.
Like all cultural phenomena, this growing sense of powerlessness has complex roots. One important source, as I write about, is the steady bureaucratization of social activities. The US now ranks 20th in the world in ease of starting a business. Many schools don’t want volunteers—there might be legal liability if something goes wrong. The land of the free has become a legal minefield.
The ultimate symptom of powerlessness is that America has also lost its confidence. We fear people making decisions. What if their judgment is deficient, or biased? We huddle together and move only in unison, shielded from the risk of individual choice by an ever denser legal jungle. This voluntary confinement reflects a fear of human nature, fed by a modern trend of analyzing human judgment as only slightly removed from bestial instincts. But this attitude “sells humanity short,” David Brooks wrote this past week. People grow and mature and develop values that far surpass their primal origins.
All the people we admire, in our history and in our lives, are people who take responsibility for their choices. They are people whose first instinct is to ask, “What is the right thing to do?” and not, “What does the rule require?” Whatever works in any community or business is always the result of individual effort. People of energy and good will wake up in the morning, determined to make a difference.
Many of the problems that cause us to wring our hands—starting with the dysfunction of democracy—can be described as failures of individual initiative. Who’s responsible for the budget deficits? Exactly. Nobody. David Remnick's recent profile of President Obama in the New Yorker reflected a kind a fatalism, that even the President could only respond to the situation presented, with little opportunity to lead us to a new place.
This is perhaps America’s greatest cultural challenge. America needs to believe again in the capacity of individuals to make a difference. If the machinery of democracy is paralyzed, we must rebuild it. If we can’t volunteer in our communities, we need to change the rules. If the culture has stumbled into the quicksand of social distrust, leaders with moral authority must emerge to pull it out. Nothing will fix itself, including America’s insecure culture. Only humans can make things work.Comment ›