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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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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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Announcing “Howard’s Daily”

By Philip K. Howard

I’m pleased to announce the launch of "Howard’s Daily," my daily postings hosted here on Common Good’s blog.

"Howard’s Daily" is my commentary on news events, articles, op-eds, etc. which expose how defective legal structures undermine common sense. I'll offer solutions for change, and highlight instances where the right balance has been struck—so that Americans are liberated to do what’s right.

I'll also highlight good ideas from others, and make the connection between current news and themes in my writings, including the forthcoming The Rule of Nobody (W. W. Norton April 2014). 

You can also find me now on Twitter—follow me at @PhilipKHoward for notices of blog postings and, in the coming weeks, more thoughts and articles I like.

Thank you for reading. I’d like to hear your feedback, or suggestions for future posts—so please leave a comment under a blog entry, tweet me, or e-mail me at phoward@commongood.org.

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Federal Rules at 75

by James R. Maxeiner

The Federal Rules of Civil Procedure—the set of rules defining the process for civil lawsuits, now seventy-five years old—are outdated, inefficient, and expensive. You might not have guessed that, however, as present and former leaders of the rule-making process gathered recently for a symposium at the University of Pennsylvania to commemorate the 75th anniversary. If the symposium is any indication, urgently needed substantial reform of the federal rules is not in the cards.

The symposium’s prevailing narrative was that the Federal Rules have been a great success in adapting to new litigation challenges: lawmaking cases such as Brown v. Board of Education, private enforcement of public laws (so-called “private attorneys general”), mass tort litigation, and massive business-versus-business litigation (e.g., Apple v. Samsung). According to the narrative, the Rules were doing a pretty good job of adjudicating these claims until the late 1970s, when backlash arose against the huge costs of such litigation. Today, according to the narrative, the Supreme Court has reacted by limiting access to the federal courts (e.g., Rule 8 pleading, Rule 11 sanctions, Rule 23 class actions, Rule 26 discovery and Rule 56 summary judgment). The Court, so the narrative goes, has tilted in favor of business. “Plaintiphobia” rules.

Only a few voices spoke contrary to the prevailing narrative and suggested that the Federal Rules may have problems. Professor Harold Koh, formerly Dean of Yale Law School and Legal Advisor to the Department of State, asked provocatively whether the Rules have achieved their stated goal of “The Just, Speedy and Inexpensive Determination of Every Action”.  He answered, “at best partially.” Professor Arthur Miller of NYU, one of the harshest critics of Supreme Court decisions limiting court access, gave them a less than stellar grade: “at best, B minus, and on an inflated grade curve, below the median.” He decried reforms of recent years as mostly “tinkering.”

There was one common theme of dissatisfaction: cases are no longer decided. Trials, and with them juries, have vanished. Only one percent of cases get trials. Judges are not judges of disputes, but “terminators” of case files—a point helpfully illustrated by a slide image of Arnold Schwarzenegger.

The flawed, prevailing narrative nevertheless remained: the Federal Rules must be preserved as they are (largely as they were in the 1970s) for these new forms of litigation, even if that means accepting unjust, expensive and slow resolution of disputes. In truth, new forms of litigation require new rules.

Several presenters came close to saying that the “transsubstantive” model, i.e., the same rules for all cases, is no longer valid. They suggested that the Federal Rules should have different litigation tracks for different sorts of claims. Under this approach,  the process of discovery and judicial supervision might vary among different types of cases. Just maybe, such simpler procedures would bring needed common sense to federal dispute resolution.

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Video: Infrastructure Now forum

The benefits of greater public and private investment in infrastructure are enormous—job creation, enhanced economic competitiveness, and a greener footprint. But first, America has to fix its paralytic legal infrastructure. Common Good and Regional Plan Association hosted a forum in Washington, D.C. on November 21 to explore obstacles to effective infrastructure investment and solutions to the regulatory and beaurocratic mess. Below, see video of all the presentations from the Infrastructure Now forum. A full schedule of the event can be viewed here, and you can read Common Good's press release on the forum here.

Senator Angus King (I-ME) introduced the forum, observing that because of our convoluted approval process, many of our most crucial infrastructure projects could not be built today:

 

Diana Mendes of the engineering consulting firm AECOM continued with comments on the history of environmental review, the National Environmental Policy Act, and what we can do today to achieve NEPA's goals without crippling our ability to undertake infrastructure projects (Mendes also used a slide presentation which you can download here):

 

Nick Malyshev of the OECD compared international approval processes that hold lessons for the U.S. approach (Malyshev's slide presentation can be downloaded here):

 

A panel of experts on environmental review shared a variety of perspectives on the challenges and opportunities for reform of the environmental review process:

 

Finally, a second panel investigated the issue of jurisdictional overlap in infrastructure permitting:

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Senator Angus King on fixing infrastructure approval

Senator King's opening remarks from the Common Good/RPA Infrastructure Now forum:

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