From The Wall Street Journal – Book Review: ‘The Rule of Nobody’ by Philip K. Howard

by Stuart Taylor, Jr.

Amid the liberal-conservative ideological clash that paralyzes our government, it’s always refreshing to encounter the views of Philip K. Howard, whose ideology is common sense spiked with a sense of urgency. In “The Rule of Nobody,” Mr. Howard shows how federal, state and local laws and regulations have programmed officials of both parties to follow rules so detailed, rigid and, often, obsolete as to leave little room for human judgment. He argues passionately that we will never solve our social problems until we abandon what he calls a misguided legal philosophy of seeking to put government on regulatory autopilot. He also predicts that our legal-governmental structure is “headed toward a stall and then a frightening plummet toward insolvency and political chaos.”

Mr. Howard, a big-firm lawyer who heads the nonpartisan government-reform coalition Common Good, is no conventional deregulator. But he warns that the “cumulative complexity” of the dense rulebooks that prescribe “every nuance of how law is implemented” leaves good officials without the freedom to do what makes sense on the ground. Stripped of the authority that they should have, he adds, officials have little accountability for bad results. More broadly, he argues that the very structure of our democracy is so clogged by deep thickets of dysfunctional law that it will only get worse unless conservatives and liberals alike cast off their distrust of human discretion.

Conservatives as well as liberals like detailed rules—complete with tedious forms, endless studies and wasteful legal hearings—because they don’t trust each other with discretion. Corporations like them because they provide not only certainty but also “a barrier to entry for potential competitors,” by raising the cost of doing business to prohibitive levels for small businesses with fresh ideas and other new entrants to markets. Public employees like them because detailed rules “absolve them of responsibility.” And, adds Mr. Howard, “lawsuits [have] exploded in this rules-based regime,” shifting legal power to “self-interested plaintiffs’ lawyers,” who have learned that they “could sue for the moon and extract settlements even in cases (as with some asbestos claims) that were fraudulent.”

As Mr. Howard notes, his book is part of a centuries-old rules-versus-principles debate. The philosophers and writers whom he quotes approvingly include Aristotle, James Madison, Isaiah Berlin and Roscoe Pound, a prominent Harvard law professor and dean who condemned “mechanical jurisprudence” and championed broad official discretion. Berlin, for his part, warned against “monstrous bureaucratic machines, built in accordance with the rules that ignore the teeming variety of the living world, the untidy and asymmetrical inner lives of men, and crush them into conformity.” Mr. Howard juxtaposes today’s roughly 100 million words of federal law and regulations with Madison’s warning that laws should not be “so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

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