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Philip K. Howard

Philip K. Howard is a noted commentator on the effects of modern law and bureaucracy on human behavior and the workings of society. In August 2016, Howard and former Senator Bill Bradley launched simplifygov.org, which advocates specific reforms, for example, leading a coalition to cut red tape for infrastructure projects from ten years to two years.

Howard is the author of The Death of Common Sense (1995), a bestseller which chronicles how overly detailed law has similar effects as central planning; The Collapse of the Common Good (2002), which describes how fear of litigation corrodes daily interaction; and Life Without Lawyers (2009), which proposes rebuilding reliable legal boundaries to define an open field of freedom. His latest book, The Rule of Nobody (April 2014), argues that American government is structurally paralyzed and must be rebuilt to revive human responsibility and accountability.

Howard’s speech at the 2010 TED conference was praised by TED’s current CEO, Chris Anderson, as “stunning” and something that he wished “every member of Congress, every Supreme Court justice would see.” It has been viewed over 580,000 times.

Howard has worked closely with leaders of both major political parties in the United States. He wrote the introduction to Vice President Al Gore's Common Sense Government, and has also advised a number of governors, including Democrats Lawton Chiles of Florida and Zell Miller of Georgia and Republicans Jeb Bush of Florida, Mitch Daniels of Indiana, and Bruce Rauner in Illinois. He was also a special adviser on regulatory simplification to Securities and Exchange Commission Chair Arthur Levitt.

Background

Howard grew up in eastern Kentucky, the son of a Presbyterian minister. He was a scholarship student at the Taft School, Yale College, and the University of Virginia Law School. His first policy job was at the Oak Ridge National Laboratory, where he worked for three summers in the civil defense group, led by Nobel Laureate Eugene Wigner, and published a monograph on post-war economic recovery.

Following law school, Howard worked at the law firm of Sullivan & Cromwell, where he was a principal associate in the Chris-Craft case before the Supreme Court and was also in Kodak’s antitrust cases. As a young lawyer, Howard also became active in civic affairs, chairing the Zoning Committee of Manhattan Community Board 6 in Midtown and leading a number of battles against developers such as Harry Helmsley.

In 1983, Howard founded Howard, Darby & Levin (subsequently Howard, Smith & Levin). That firm merged with the Washington firm Covington & Burling in 1999, of which Howard became Vice-Chair. He remains a practicing senior counsel in Covington’s New York office.

Howard has been an active civic leader in New York City, responsible for chairing the committee that installed the “Tribute in Light” memorial for victims of the September 11 attacks. He is Chair Emeritus of the Municipal Art Society, which led the battle to save Grand Central Terminal. Among his other civic projects, Howard opposed the original tower at Columbus Circle, arguing that it would have cast a shadow across Central Park, championed new codes that would increase the signage and lights on Times Square, and built a coalition to persuade the Post Office to relinquish most of the Farley Building so that it can become a new Penn Station.

In 2001, a week after the 9/11 attacks, Howard was contacted by architect Richard Nash Gould who suggested that two spotlights be placed at the World Trade Center site. Along with David Rockefeller, Howard organized a committee of leading citizens to support and fund such a project. The “Tribute in Light” memorial went up on the six-month anniversary of the attack.

Howard’s experience as a civic leader led him to explore why government officials seemed powerless to make sensible choices. This led to writing The Death of Common Sense. Howard then became an adviser to Al Gore’s reinventing government initiative, including working to streamline federal OSHA rules on worker safety and to make environmental rules more flexible.

Reform Philosophy

Howard has focused on how modern legal structures undermine the ability of people to use practical judgment in daily choices. He has argued that for people who deal with the public, such as teachers and doctors, the effect of too much law can be paralyzing. He has posited that people who think about legal exposure no longer act on their best instincts, and instead focus on conduct that will provide objective markers in case there’s a dispute, such as the practice by physicians of “defensive medicine.”

The core flaw in modern law, Howard argues, is the premise that law can dictate correct behavior by specific rules, and can determine the correct course of conduct by objective evidence in a trial. Law in a free society is supposed to set outer boundaries of unreasonable behavior, not be a multiple-choice test or an ordeal by trial whenever there’s a dispute. These boundaries of law are supposed to define and protect an open field of freedom, Howard argues—to set “frontiers, not artificially drawn, within which men shall be inviolable” (quoting philosopher Isaiah Berlin). Today, Howard argues, those legal dikes have burst, so people wade through law all day long. Instead of looking where they want to go, they go through the day looking over their shoulders.

Howard has attracted broad support for his ideas. In September 2010, New York Times columnist David Brooks highlighted Howard’s work on “the responsibility deficit” and embraced his solution for a “great streamlining,” calling it “the crucial theme of the moment.” Bill Bradley praised Howard’s Life Without Lawyers as “a real wake-up call from one of America’s finest public minds,” while Washington Post columnist George Will deemed it “2009’s most needed book on public affairs.” In November 2010, Howard was a guest on The Daily Show with Jon Stewart, where he talked about starting a movement to streamline government and restore individual responsibility at every level of society. He made follow-up appearances in May 2011 after the re-release of The Death of Common Sense and in June 2014 after the release of The Rule of Nobody. (Watch parts two and three of the interview here and here.) 

Howard argues that the flawed conception of law as a way to compel correctness manifests itself in the assumptions of modern legal orthodoxy:

  • Making law too detailed is just a version of central planning—forcing both regulators and the regulated to “go by the book,” whether or not it makes sense. “Zero-tolerance rules” in schools compel principals to suspend young children for pointing their fingers like a gun. The solution, Howard argues, is for law to set goals and general principles, so people can use their judgment within legal parameters, and if there’s a disagreement, argue over what makes sense rather than over formalistic compliance.
     
  • Letting people sue for anything injects fear and defensiveness into ordinary interaction—so that teachers, for example, are told never to put an arm around a crying child. The solution, Howard argues, is for judges to act as gatekeepers of reasonable claims, making rulings as a matter of law to define the boundaries of what people can sue for. Today judges see their job as neutral referees letting litigants claim almost anything. Tort reform—generally limiting claims—can reduce the exposure but does nothing to restore trust that justice will affirmatively defend your reasonable actions. Judges must have the authority to draw boundaries of reasonableness as a matter of law. Otherwise justice becomes a tool for extortion. We would never let a prosecutor seek the death penalty for a misdemeanor, Howard argues, so why do we let a private litigant sue for millions for a minor accident or because the dry cleaners lost a pair of pants?

The accretion of law, Howard argues, has also paralyzed democracy. Lawmakers add thousands of pages of law every year but rarely take any away. Law has grown, like sediment in the harbor, until it is difficult for government officials to act sensibly, or balance the budget.

The essential paradox in Howard’s philosophy is that authority is essential for freedom. Only when the judge has authority to dismiss an unreasonable claim will people in society feel free in daily interaction to act on their reasonable judgment. Only when the official can use his common sense will government act sensibly, and be able to adapt to practical problems that constantly arise. Only when the teacher has authority to respond immediately to disorder can we build a culture of respect and order in America’s schools. The fear of abuse of authority has driven America to a hyper-legalistic society, which Howard argues causes constant failure and unfairness. Far better to have clear lines of accountability up a hierarchy—to appeal the judge’s unreasonable ruling, or fire the abusive official—than to prescribe in advance their decisions. By putting legal shackles on those with responsibility, Howard argues, we unintentionally put shackles on ourselves.

Awards

Howard has received numerous awards and honors for his legal reform and civic work, including the Presidential Citation from the American Medical Association (2005) and the Chamber Music Society of Lincoln Center Award for Civic Leadership (2007). In 1987, the Village Voice named him “one of New York’s heroes” for his successful leadership against oversized development projects. Howard has also been asked to deliver endowed lectures, such as the 2008 Lewis Powell Memorial lecture at Washington and Lee University. Howard was named a finalist for the Friedrich Hayek Prize in both 2015 and 2016 for The Rule of Nobody.

Personal Life

Howard and his wife Alexandra Cushing Howard live in Manhattan. They have four children.