Therapy for suffocation by American laws

January 29, 1995|By William K. Marimow

'The Death of Common Sense: How Law is Suffocating America,' by Philip K. Howard, Random House, 202 pages, 18.00.

Dr. Michael McGuire's skirmish with federal auditors started because the five-acre lawn at his UCLA research lab needed mowing. When the lab's lawn mower broke, McGuire promptly bought a replacement and told the grounds crew to save the old one for spare parts. Months later, during a routine audit of the lab, which is funded by the Veteran's Administration, federal officials were dismayed to learn - from McGuire himself - that the new lawn mower was purchased without the required approvals. They launched an investigation.

As a result, the auditors slapped an official reprimand into McGuire's file and ordered him to study the VA's procedures. McGuire, as it turned out, may have been spared even tougher discipline because of one piece of mitigating evidence: He paid for the lawn mower with his own money.

In many ways, McGuire and his lawn mower are appropriate symbols for Philip K. Howard's first book, 'The Death of Common Sense: How Law Is Suffocating America,' a slender volume of public policy analysis. In lucid, economical prose, Howard, a New York lawyer, argues that the proliferation of rules and regulations, laws and entitlement programs over the last 30 years have created a legal morass in the United States that stifles creativity in government, discourages individual enterprise and alienates many of us from our fellow citizens.

Beginning in the 1960's, according to Howard's argument, Congress began carving out a new generation of rights -- rights that handcuffed our government and subordinated the common good to almost any demands from those assigned protection by the new laws.

There were rights for the disabled, the homeless, public school students with behavior problems, the mentally ill and endangered species. All came complete with their labyrinthine rule books shackling decision makers who were fearful that firm action -- even buying a lawn mower with one's own money -- might break the rules. Equally disturbing, contends Mr. Howard, the battle over how to implement these rights has polarized people and inhibited government freedom to do important work.

Mr. Howard is particularly critical of advocates for the disabled. He denounces the, for example, for undermining an effort in New York to install outdoor toilet kiosks. When a non-profit organization offered to provide six kiosks for free, advocates for the disabled argued successfully that this was 'discrimination in its purest form' and forced a compromise: Three kiosk locations were set up, with side by side facilities - one for the disabled, staffed by an attendant; the other, for the general public. The kiosks for the public were used thousands of times a day; the disabled facility was hardly ever used. But the expense of having two stations at every location and a full-time attendant effectively ended the experiment.

For those who believe Supreme Court Justice Oliver Wendell Holmes' assertion that 'the life of law has not been logic' but human experience, Mr. Howard's thesis will have great appeal. The same is true for pragmatists like me, who believe fervently that acting with common sense, reasonableness and a commitment to fair play will prevail -- whether the arena is the office, the neighborhood or the courtroom.

While Mr. Howard pleads his case forcefully, I believe that he could have been even more persuasive and informative had he added more original reporting to his work.

All too often for this reader, Mr. Howard relied on secondary sources - The New York Times, the Wall Street Journal, magazines, an unnamed television documentary and court cases. A main conseequence of this failing is that many of the people Mr. Howard describes never quite come to life, and their dilemmas often seem one-dimensional and abstract. Despite that weakness, 'The Death of Common Sense' is well worth reading. More importantly, its lessons are valid and needed therapy for our suffocating democracy.

(William K. Marimow, as an investigative reporter and editor on The Philadelphia Inquirer for 20 years, has focused on failures and dangers within government institutions. That work has earned two Pulitzer prizes. As a Nieman Fellow at Harvard University, he studied law. He is associate managing editor of The Sun.

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