Review of 'The Death of Common Sense' by Philip K. Howard.
Do you ever wonder, "Am I nuts, or is the legal system screwing up just about every aspect of our lives?" Read The Death of Common Sense (Random House, 1994), in which author Philip K. Howard, himself a lawyer, confirms that we nonlawyers are perfectly sane to harbor such thoughts. Our legal system is a mess, he shows, for two reasons. First, we have substituted rules and regulations for human judgment, virtually guaranteeing that we will fail to achieve the desired results. (Example: The Occupational Safety and Health Administration's 4,000 detailed regulations. The result? Billions spent by business on compliance, with absolutely no demonstrable improvement in workplace safety over the past 30 years.) Second, the legal system has enabled special-interest groups to dominate policy through litigation, at the expense of society as a whole. (Example: Countless suits against school systems brought by parents of disabled children. The result? School systems that spend 25% of their budgets on special-needs students representing only 10% of the student population.)
"'The idea of law," the author concludes, quoting Yale professor Grant Gilmore, "'has been ridiculously oversold.' The rules, procedures, and rights smothering us are different aspects of a legal technique that promises a permanent fix for human frailty. . . . This legal experiment, we now know for ourselves every time we encounter it, hasn't worked out. Modern law has not protected us from stupidity and caprice but has made stupidity and caprice dominant features of our society."
But as illuminating as the book is about the legal mess we've created, it is shockingly devoid of remedies, other than suggesting that we wake "up every morning . . . and try to accomplish our goals and resolve disagreements by doing what we think is right." As if most of us haven't been acting that way all along. We can only hope that someone else will eventually come up with solutions as insightful as Howard's diagnosis. In the meantime, read this book and be reassured that you're not losing your marbles.