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The death of common sense: how law is suffocating America

1995; Association of College and Research Libraries; Volume: 32; Issue: 10 Linguagem: Inglês

10.5860/choice.32-5922

1943-5975

Philip K. Howard,

Legal Systems and Judicial Processes

If Howard plays his cards right, he may be on the brink of creating his own intemal industry along the lines of Peters and Waterman's, In Search of Excellence. There appears to be a broad range of acceptance of his views on the excesses of regulation. President Clinton recently shared the same stage with Howard when he aligned himself with the popular intention of reducing big govemment. Senator Dole and the democratic Govemor of Florida, Lawton Chiles, have also embraced Howard's book. Even outside the United States, other countries seem to be changing course toward a reduction in govemment and regulation. For example, France elected conservative, Jacques Chirac, and a conservative recently won office in a Canadian province. It is not clear whether Howard's book is a harangue against regulation or the U.S. legal system. Does the latter lead to the excess of the former? Because Howard is a corporate lawyer, his polemic is all the more compelling. Howard proposes the notion of a budget (pp. 9, 26). This has been seen before under the mbric of sunset in which regulations are evaluated periodically according to certain criteria to justify the continuation of the regulations. Howard notes lawmakers' zest for promulgating regulations, but their lack of enthusiasm for reducing them. Evaluating regulations may be currently revived in the proposed legislation in the Senate, which would require cost/benefit analysis to be undertaken before any proposed regulations can be adopted. At the heart of Howard's concem is the seemingly wrong tum the United States has taken in trying to solve every national problem with detailed regulations. It would be better to allow the nation's administrators to use a little common sense, judgment, and discretion. Indeed, the common law is based on such a premise; namely, past experience with legal matters accumulated over time in the form of legal precedent provides the guidelines for evaluating future legal issues. The situation is further exacerbated by the deluge of regulations, as well as the ridiculousness of so many of them. According to the author, if only Americans could rely on lawyer friendly terms of art, such as the reasonable man standard and good faith (pp. 23, 24), society would be better served. Yet, Howard also expresses fmstration with those administrators in the school systems who knew, or reasonably should have known (p. 128) that their disciplinary actions were violating the constitutional rights of students. His embracing of the reasonable man standard is difficult to fit with its application in reality. Anyone who has attempted to study antitmst law in which the mle of reason standard is applied, knows the frustration in trying to apply a standard (1) when the plaintiff has the burden to show that the conduct in question is more anticompetitive than procompetitive in the relevant geographic and product markets and (2) when the defendant has not employed the least restrictive competitive altemative in restraining trade. Howard correlates the regulatory mess the United States is in to trends or political eras. Prior to the tum of the century, the United States was relatively free of regulations and statutes. Rules and regulations began to replace the common law around the late 1800s, with tmst-busting legislation and laws dealing with child labor. The New Deal, under President Franklin Roosevelt, put the United States on the road to a regulated economy. President Lyndon Johnson's Great Society, with Medicare, work safety, and civil rights laws, capped the progression (pp. 24-28).