INVOCATION III

For those still interested, here are two somewhat contrasting views: ‘Rick Warren Is an Insulting Choice,’ a stinging op-ed in the LA Times by Katha Pollitt . . . and this account by Melissa Etheridge – who fought as hard as anyone against Prop 8 – but met Rick Warren recently and came away hopeful.

LIFE WITHOUT LAWYERS

I am so angry at Sirius Satellite Radio I am looking to find others who may wish to join in a class action suit. (Sirius makes it impossible to cancel your monthly charge if you have lost your account number.) So don’t count me entirely anti-lawyer.

But neither is the system anywhere close to perfect – let alone welcoming of improvement – as I recounted at great length here. (Such is the enduring value of ‘my two cents’ on this and other topics that you can apparently acquire it for one cent.)

Now comes Philip K. Howard’s Life Without Lawyers, reviewed here, the sequel to his 1995 The Death of Common Sense (‘What Mr. Howard is trying to do with this thoughtful little book is drive us all sane,’ opined the New York Times at the time).

PRE-ARCHIVISATION

That got me thinking about my own blurb for The Death of Common Sense, back when it was first published . . . and that got me to thinking I had actually written something about it here, in this space, inaccessible to you, but in my pre-archived stash of about 180 particularly musty columns – dated September 11, 1996.

The Don’t Be Ridiculous Law

It’s a matter of no small chagrin that my two most successful books were written by other people.

The first was Indecent Exposure, by David McClintick, in 1982. It hit #1 on the New York Times best-seller list, and my name was prominently on the front. I had the lead blurb. I had a book of my own out then, but I quickly learned that when friends called all excited to tell me they’d seen ‘my book,’ they didn’t mean my book at all. They meant Indecent Exposure.

My second big success is out now. It climbed to #3 on the list (the best I’ve ever done is #4), and, again, I had the lead blurb.

I am very proud of this, because it is an important book: The Death Of Common Sense, by Philip Howard. And it’s having an impact. Florida Governor Lawton Chiles bought 200 copies with his own money and has vowed to cut Florida’s 28,000 regulations in half. President Clinton waved the book around at a press conference and reemphasized his commitment to reinventing government.

It is a slim volume filled with anecdotes that suggest we’ve lost our minds. The quick example everyone uses: When Mother Teresa tried to renovate an abandoned building in the Bronx to be used as a homeless shelter, she met two years of opposition and finally had to give it up because she couldn’t afford to install an elevator for the handicapped homeless. Surely, society would have been better served had the nuns been granted a waiver, but rules is rules and, well, you get the idea.

I once had to spend $600 to build a three-foot staircase to allow direct access to a fuse box. It could easily be reached by leaning a little to the left from the existing concrete stairs, or by grabbing a step-ladder; but the inspector insisted on stairs. We should build them, pass inspection, and then get rid of them if we liked, he said. Rules is rules.

The problem with the book that some reviewers have noted: it’s long on frustration but short on solutions.

In fact, the book does point clearly at a solution. Namely, that, where reasonable, we write objectives, not rules, and allow regulators and inspectors to use their judgment in meeting those objectives in the most sensible way.

But if that’s a little vague, let me suggest something specific.

What we need, simply, is Congress (and each Statehouse) to pass a ‘Don’t Be RIDICULOUS’ Law. Oh, it could be called something more formal, but here’s what it would say: When something is just patently stupid, you wouldn’t have to do it. Every government agency would have to enact Don’t Be Ridiculous guidelines – or give a convincing excuse why not.

For example, the banking regulators would say that any bank can waive any government requirement that is patently, in the circumstances, ridiculous. If you owned the Sears Tower, free and clear, and wanted to borrow $5 million against it, the bank would have the right to make that loan without an appraisal. Right now, it can’t.

Or if you owned a toxic waste site that could be made into a perfectly safe parking lot for $15 million, but that would cost $500 million to be made suitable for cows to graze and produce milk for children, you’d be allowed to pave it over – and without ten years of legal fees.

Or if you were a federal judge faced with mandatory sentencing guidelines you were certain, in this particular case, were grotesquely unfair, you would be allowed to exercise some judgment.

Or if you were nuns trying to turn an abandoned building into a homeless shelter, you could get a DBR waiver to do it without installing an elevator.

There would be safeguards. In the case of banking, no one DBR waiver could exceed, say, 2% of the bank’s capital, and the sum of all could not exceed 60% – so that even if the bank had been wrong in every single instance, its solvency would still not be threatened. And the auditors, when they showed up every year or two, would scrutinize a random sampling of these DBRs to be sure they were not being abused. If they were, a full audit would ensue, and some sort of harsh penalty levied.

Bureaucrats would know they could lose their jobs or even go to jail if they invoked the DBR waiver inappropriately. And a separate group would spot-check DBRs, so even if the official and his boss were taking bribes to issue DBRs, both would get caught.

But the net effect would be to do what Philip Howard wants: Give people in positions of responsibility a little discretion. Allow them to exercise a little common sense.

The good news is that, even without a law, progress is being made – as those who saw Al Gore smash an ashtray on David Letterman’s desk may have sensed. No longer, if you work for the government and need to buy a hammer (or an ashtray), must you put out a competitive bid. In Maine, OSHA has successfully redefined its mission from handing out citations, like a meter maid – the more citations, the better the job – to finding business-friendly ways to encourage safety. Now that program is being rolled out. And there are other examples.

You still need to get an appraisal if you want to borrow $5 million on the Sears Tower. But that too may one day change.

☞ Thirteen years later, Mother Teresa has long since gone on to her reward, but Philip Howard is still banging the drum for common sense.

 

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