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

Blog — Op-Ed

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

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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

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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

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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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