Everyone Goes in Exactly the Same Place

January 22, 1995|By GEORGE F. WILL

WASHINGTON — Washington. -- Perhaps one reason so many New Yorkers are so surly is that they have to go to the bathroom but can't, public toilets being scarce. However, at least rights are plentiful.

In 1991 the city proposed testing six sidewalk toilet kiosks small enough not to impede pedestrian traffic. Wheelchairs would not fit in them and New York's anti-discrimination law makes it illegal to ''withhold or deny'' from the disabled access to any ''public accommodation.'' The toilets, said the city government, would be ''discrimination in its purest form.'' Can we provide wheelchair-accessible bathrooms in nearby buildings? ''The law,'' said a spokesperson for the disabled, ''requires that everyone go to the bathroom in exactly the same place.''

Rights are non-negotiable, so two kiosks were tried at three locations, one for the general public, and one, with a full-time attendant, for wheelchair users. The regular toilet averaged 3,000 flushes per week, the other was virtually unused. It is 1995, the sidewalk toilet proposal is stalled, the procedural mills grind on, civic rancor increases.

This vignette is from Philip Howard's book ''The Death of Common Sense: How Law is Suffocating America.'' Mr. Howard, a New York lawyer, believes government looks increasingly absurd because increasingly it tries to use detailed laws as substitutes for reasonable judgments by individuals.

He says the Occupational Safety and Health Administration has more than 4,000 detailed regulations (at one point it had 140 pertaining to wood ladders), and there may not be a workplace in America that isn't in violation of at least one. One requires ''poison'' signs where sand is stored because sand contains silica, which some scientists think might in certain situations cause cancer. That is why OSHA once classified bricks (a brick, says OSHA helpfully, is ''a hard ceramic body with no odor'') as poisonous because if sawed they release small amounts of silica.

Such maddening meticulousness results from the casting of every social good as a ''right,'' as in a worker's ''right'' to health and safety. As rights multiply, the vocabulary and skills of accommodation fade. Says Mr. Howard, ''The rights that are the foundation of this country are rights against the law.'' Those rights are shields. The new rights are bludgeons, blunt powers to enable some people to coerce others.

Mr. Howard says, ''Our hatred of government is not caused mainly by government's goals, whatever their wisdom, but by government's techniques.'' Actually, the techniques express two goals -- compassion, meaning safety from material or mental distress, and equality, not meaning treating like cases alike but rather treating everyone the same.

The lunatic proliferation of law expresses the urge to produce an instruction manual for living the life we have a ''right'' to -- a life without risk of injury or injustice. So New York regulations of day-care centers enjoin caregivers to ''comfort a child when in distress.'' In states without such punctilious regulations, do children go uncomforted?

One result of too much such law is a scofflaw nation. As Mr. Howard says, when law is too dense to be known and too detailed to be reasonable, why respect it?

Indeed, why not exploit it? Mr. Howard says that recently posters on Manhattan's Upper West Side advertised for someone to share an apartment rent-free. The plan, detailed on the posters, was to move in, refuse to pay rent, and live free for the 18 months it takes a landlord to get an eviction order. Such scams are one price of procedures made rococo in attempts to give maximum protection to the maximum of ''rights.''

So is this: A disruptive student at a Bronx high school assaulted a guard. The assault was witnessed by another guard, a teacher and a dean. But the student was not suspended because, under one filigree on due process, a student witness is required in a case involving such significant discipline.

Law, says Mr. Howard, no longer just facilitates society's enterprises, it is one of society's main enterprises. The Los Angeles Times reports that in 1992 California lawyers' fees totaled $16.3 billion, more than was spent on auto repairs, funerals, tanning salons, one-hour photo finishing, videotape rentals, detectives, armored-car guards, bug exterminators, laundry, haircuts, day care, shoe repairs and septic-tank cleaning -- combined.

Says a representative of the California bar, ''I'll put up the social contribution of the legal profession any day against that of the motion-picture industry.'' As a defense of the current practices that are devised by and benefit lawyers, that illustrates the death of common sense.

George F. Will is a syndicated columnist.

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