Posted 6/30/14 by Common Good
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 ›
Posted 6/27/14 by Benjamin Miller
by Benjamin Miller
Yesterday the Supreme Court issued a unanimous ruling that President Obama's use of recess appointments to fill executive positions without the approval of Congress violated the Constitution.
Recess appointments are only one weapon in an increasingly utilized arsenal deployed by the President in an effort to sidestep congressional obstruction. Executive orders and federal regulations have also been used more and more frequently to achieve the President's policy objectives without running the congressional gauntlet. At the same time, Speaker John Boehner is threatening a lawsuit against Obama for overreach of executive orders.
In the Fiscal Times, Rob Garver analyzes what this trend indicates about the functionality of the federal government:
These are two sides of the same ugly coin. Congressional Republicans can’t force the President to govern the way they want him to, so they throw as many roadblocks in his way as they possibly can, from creating gridlock to refusing to fill vital government positions.
For his part, Obama can’t force the Congress to legislate the way he wants it to, so he is doing everything in his power to work outside the system, effectively depriving Congress of its rightful role in both legislating and overseeing the executive branch.
Garver goes on to quote Philip Howard, who observes, "The separation of powers is all oatmeal...The executive is writing laws, the Congress is dictating how the branch executive manages federal agencies."
As Graver notes, the result of this war between the executive and legislative branches is a judiciary making policy through court decisions. All three branches are out-of-whack, making it unclear who in government is responsible for what. "What’s going on in Washington," says Philip, "has no relationship to the democracy the framers intended."
This confusion not only diminishes the authority of both the President and Speaker. It also contributes to an atmosphere of impotence. Executive agencies go leaderless. Congress, instead of fulfilling its legislative responsibility, throws wrench after wrench into the executive works. Federal government looks more and more like the rule of nobody.
Garver's full article is well worth a read.Comment ›
Posted 6/23/14 by Common Good
By James R. Maxeiner
Massachusetts Governor Deval Patrick has proposed a ban on non-compete clauses in employment contracts. In Massachusetts, employers have been imposing these clauses not just on senior management and technical experts, but increasingly on lower level employees such as teenage camp counselors and hair-stylists. The clauses prevent workers from taking new jobs--even though employees are sometimes not even aware that they have entered into such an agreement.
The Governor’s proposal implicates three Common Good themes: (1) consistent laws; (2) litigation costs; and (3) laws that don’t micromanage, but facilitate individual responsibility.
Most states deal with employment non-compete clauses using what is called the "rule of reason." Whether a clause is reasonable or not is determined based on precedent, balancing employee interest with employer interest--how the employee’s competition might hurt a legitimate interest of the former employer.
Not all states permit employee non-compete agreements. California prohibits them.
Why? California doesn’t want to keep people from working. If people are unemployed, the state may have to pay them unemployment compensation or welfare.
Backers say that non-compete clauses allow businesses to invest in employees without having to worry that they are training potential competitors. Employees don’t have worry, because the law allows only reasonable restraints. It seems sometimes non-compete agreements make sense and other times they do not. Governor Patrick has suggested the ban might be limited to the technology industry. What should Massachusetts do?
- Consistent laws. No matter what Massachusetts does, the United States will still have a patchwork of laws governing employee non-compete clauses. Today, many jobs, especially in high tech, know no geographic boundaries. Which law governs: a strict California prohibition, a lax Texas or Florida law, or a law somewhere in between? A national solution is needed.
- Litigation costs. The rule of reason is a rough-and-ready rule that may work well enough in theory, but is burdened in real life by a dysfunctional litigation system. There is little that prevents an unreasonable employer from imposing an unreasonable non-compete clause and then threatening to sue a departing employee. Since there is no shifting of litigation costs, even the employee who wins, loses.
- Party responsibility. The rule of reason, at least where an employer is unreasonable, requires that a court decide whether the employer has a legitimate interest. Is there a way to make sure that an employer does not act illegitimately without requiring court intervention? As it is now, the employer has little risk in including a non-compete clause in an employment contract. Buried in fine type, many employees may not even be aware of it. How might the law promote legitimate agreements (knowingly entered into) and discourage illegitimate ones (inadvertently agreed to)? The law could require that a non-compete clause be separately agreed to. That would make sure that the employee knew about it. The law could require that the employer pay the employee half or more of the employee’s salary during the period of non-competition. That would make sure in most cases that the employer has a legitimate interest. It would also provide a measure of equity to the employee.
A national rule for non-compete clauses, subject to loser-pays application, requiring payment during the period of non-competition is no fiction. It is already the law elsewhere. Law can be reasonable.Comment ›
Posted 6/20/14 by Common Good
It doesn't take a Le Cordon Bleu chef to know you ought to cook eggs before serving them, especially in a nursing home. Yet that rule is part of a countless list of regulations governing Kansas nursing homes--rules so detailed and specific that workers are forced to devote most of their time to compliance, rather than actually improving the level of care.
This is just one of many examples of regulatory absurdity discussed in The Rule of Nobody, and it's one that caught the attention of Free-Range Kids founder Lenore Skenazy in an article for the Huffington Post:
This kind of ridiculous regulating pops up in pretty much every public sector. In fact, in my neighborhood, RIGHT NOW, workers outside the apartment building next door are tearing down the beautiful, wrought iron fence that has been there for 60+ years, because the city finally noticed (and cared) that it is 7 inches higher than allowed by local law.
What happens when we pile on laws like this that are excruciatingly precise, but don't make life any better for anyone?
A better approach? Write laws and regulations that set principles and goals, and give people the flexibility to achieve those goals efficiently and sensibly.
Read the rest of Lenore's piece here.Comment ›
The message of The Rule of Nobody--that the accumulation of law and regulation over decades has made government impossible to run--is spreading. On Monday, the Boston Globe's Jeff Jacoby wrote that laws, like credit cards, should have expiration dates:
In the real world, things don’t last forever. The carton of milk in your refrigerator has an expiration date. So does the credit card in your wallet. Cars need periodic tune-ups. Medical prescriptions have to be reauthorized.
Government should operate on the same assumption. Every law should expire automatically after a fixed period of time — say, 12 or 15 years — unless lawmakers expressly vote to reauthorize it. Likewise every legislatively created agency and program. Members of Congress and state legislatures should be required to revisit their handiwork on a regular basis, reviewing it for relevance, efficacy, and soundness, and allowing measures that have outlived their usefulness to lapse.
Philip Howard has proposed a 28th Amendment to do just that:
Amendment XXVIII: No statute or regulation requiring expenditure of public or private resources (other than to oversee legal compliance or enforcement), shall be in force for longer than fifteen years. Congress may reenact such a law only after finding that it continues to serve the public interest and does not unnecessarily conflict or interfere with other priorities. Before making its determinations, Congress shall consider recommendations by an independent commission on whether and how to amend any such statute or program. At any time, Congress by majority vote of each house shall have the power to invalidate any regulation promulgated under a statutory delegation, without presentment to the President.
Read Jacoby's article here.Comment ›
Posted 6/13/14 by Common Good
The national debate around regulation is too often restricted to one dimension: Is it over-reaching or overly lax?
In truth, the broad problem with regulation at all levels of government has less to do with its content than its method. As a rule, U.S. regulations are increasingly minute, narrow, and numerous. One consequence of this approach is that regulatory approval often balloons to absurd proportions, leading to hopelessly delayed projects and enormous expense for no good reason. We've seen this time and again with environmental review for infrastructure projects. Projects with minimal or negligible environmental impact can be caught up in years of investigation, reporting, and litigation, stifling progress and making long-term planning very difficult.
Fortunately, this issue is finally getting some attention in Congress. Senator Angus King (I-ME) recently summed up the idea in testimony at a hearing with the Senate Committee on Homeland Security and Government Affairs:
Regulation is an essential function of our government and is critical to protecting the things our society values, like the environment, public health, and safety. However, I am opposed to senseless regulation--those rules that do not serve a greater public purpose and are burdensome or impede our ability to compete with the rest of the world.
King told the Subcommittee on the Efficiency and Effectiveness of Federal Programs and the Federal Workforce that our current regulatory permitting process is hopelessly protracted and inefficient. Fixing the process is imperative for the sake of American infrastructure and the economy--and, as King says, it doesn't have to come at the expense of environmental protection:
It bears mentioning that tough standards and a timely process need not be at odds with one another. When I was governor of Maine, I used to say that I wanted Maine to have the toughest environmental standards in the country coupled with the country’s most predictable, user-friendly process. A project’s desirability should be based upon its merits, and its viability should not be determined by its opponents’ ability to delay the regulatory process.
The answer is not to weaken regulatory protection, but to clarify and simplify the process. Doing so would promote construction that is both responsible and timely, and it would increase our ability to repair our failing national infrastructure. King's solution:
Can we find a way to permit major projects at a cost that is not extraordinarily prohibitive and within a reasonable time frame without trampling on the legitimate rights of the people impacted? I believe we can. One of the first steps we could take is to address the issue of serial permitting--i.e., the phenomenon of uncoordinated and successive permitting approvals for a single project. When I was governor of Maine, we addressed this problem by creating a system of "one-stop regulatory shopping," which put the responsibility of issuing the final permit within one agency and required all the other agencies to coordinate and consult with the lead agency.
I believe a similar process could work at the federal level, and two members of this subcommittee, Senator Portman and Senator McCaskill, have introduced a bill that takes this very approach. The bill--S. 1397, the Federal Permitting Improvement Act of 2013--would institute some important changes to federal permitting procedures, and I am proud to announce my co-sponsorship of the bill today.
The Economist's editor-in-chief, John Micklethwait, recently joined Philip Howard for a discussion around their two recent books: Micklethwait's The Fourth Revolution and Howard's The Rule of Nobody. Watch an excerpt of their conversation here:
Posted 6/9/14 by Common Good
From L'Enracinement by Simone Weil (1949), translated by Arthur Wills:
Rules should be sufficiently sensible and sufficiently straightforward so that any one who so desires and is blessed with average powers of application may be able to understand, on the one hand the useful ends they serve, and on the other hand the actual necessities which have brought about their institution. They should emanate from a source of authority which is not looked upon as strange or hostile, but loved as something belonging to those placed under its direction. They should be sufficiently stable, general and limited in number for the mind to be able to grasp them once and for all, and not find itself brought up against them every time a decision has to be made.
Common Good advocates regulatory overhaul not to weaken regulatory protections but to simplify, clarify, and streamline the way we achieve them. Check out our issue brief on regulatory simplification here.Comment ›
Posted 6/9/14 by Common Good
Philip appeared as Jon Stewart's guest on Monday, discussing his book The Rule of Nobody. Here's what Philip had to say about legal accretion:
The Constitution is an open framework of goals and principles. It's 10 pages long. The Volcker Rule is 980 pages. Law is supposed to be a framework within which people take responsibility. And then you hold—in a democratic process—people responsible for whether they succeed in running the agency properly, or whatever. But we've taken away the authority that goes with the responsibility, with literally tens—hundreds—of millions of words of law, so that it's become this vast vat of legal quicksand. It's thicker every year. It's a progressive disease. It's worse now than it was 20 years ago. It will be worse next year.
Posted 6/5/14 by Benjamin Miller
by Benjamin Miller
Philip Howard’s new book, The Rule of Nobody, reveals the consequences of entrusting governance to broken bureaucracies and accumulated, often outdated law. A concern that often arises in this discussion is with granting officials authority to use their judgment. An individual can make a bad call, the thinking goes, in contrast to the security of a systematic, (ostensibly) impartial legal and regulatory system.
It’s a concern worth considering. In The Rule of Nobody, Philip argues that if you simply look at the real, scandalous consequences of the heavily bureaucratic approach we’ve accepted (from exploding budgets to banned lemonade stands), it’s clear real people are needed to exercise judgment and instill common sense. There’s a positive angle as well: individuals with the authority to use good judgment can take pride in their work and strive to solve problems from the federal level down to individual communities.
Victor Lee Austin is a priest (and a personal friend), and his book Up With Authority concerns, in part, church hierarchy and doctrine. But Austin’s project—as suggested by the book's subtitle, "Why we need authority to flourish as human beings"—at its heart concerns this positive side of authority as it appears, or should appear, across not only religious communities, but also society and politics.
It’s unhealthy, Austin argues, to see authority as a necessary evil—an unavoidable cost of maintaining order that ought to be minimized. Rather, authority enables us as individuals and groups to do things that would otherwise be impossible. Consider a symphony orchestra:
Decisions must be made about phrasings, about tempo, about volume and blend of various instruments. On each of these questions there are many wrong answers, but there is also seldom just one right answer. So decisions must be made. And they must be made amongst alternatives which have equal reason. So someone, an authority, in this case the conductor, has to determine how the music will be played. And the musicians must accept the conductor’s determinations and play as she directs, or else there will be no music.
Does a musician lose his freedom when he plays as his conductor directs? …Without the authority of a conductor, that symphony never could be heard.
Now of course a conductor will sometimes make a bad decision. A conductor might even at times exhibit malice or bias, and there must be avenues of recourse for musicians who are unjustly treated. But these risks don’t mean that an orchestra would be better off without a conductor.
Teachers, regulators, and business owners may also make bad decisions from time to time. For decades we've tried to minimize such mistakes by writing increasingly specific laws and regulations. Thus over time we've severely constrained the ability of people in positions of authority to exercise discretion. But the antidote to bad decisions isn't to prevent decisions from being made at all.
As Austin puts it: "[T]he reality of evil in the form of fallible authority is not an argument against authority." Yes, people in positions of authority will sometimes make mistakes, errors in judgment, even willful wrongs. But that doesn't mean we would be better off without people—even fallible people—in positions of authority. We entrust individuals with authority not because they are perfect but because we believe they can make necessary decisions.
Up With Authority is available on Amazon and elsewhere.Comment ›