January 27, 2017
I saw an excellent TedTalk by Philip Howard, a lawyer, activist, and author who lives in New York City. Howard burst on the national scene in 1995 with a bestseller called The Death of Common Sense: How Law is Suffocating America. In recent years, Howard has written several well-regarded books about the profusion of laws and lawsuits in the U.S. He started a non-partisan, non-profit organization called Common Good, and has been involved in various projects in New York City, such as saving Grand Central Station. Howard grew up in Kentucky, and attended the Taft School (in Connecticut) and Yale.
Laws and regulations have proliferated because we don’t want to give people power to make decisions, we have the modern bias that Nietzsche called “misarchism” — hatred of authority.1 In his TedTalk, Howard says that we must restore authority to judges and officials, we must allow them to use common sense, to use good judgement. We’ve been taught that authority is the enemy of freedom, but actually authority is essential to freedom.
We shouldn’t try to make a law/regulation for every situation. Howard says that law should set boundaries protecting an open field of freedom, not intercede in all disputes. Laws should be simple and general, so they can be internalized. Howard points out that the Constitution is only 16 pages long, but it worked well for more than 200 years.
In classrooms, we’ve replaced authority with regulation. “Schools are drowning in law,” Howard says. Teachers and principals don’t have the authority to suspend a student; there are 60 steps to go through before you can suspend a student.
Many regulations are made in the interests of safety, but if we try to eliminate risk, and eliminate accidents, we don’t end up with a model society, we end up with a paralyzed society. Our health-care system is pervaded by fear of lawsuits and by defensive medicine.
Tocqueville was one of the first to warn against a profusion of laws and regulations; he spoke of a “network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate.”
Trump is now talking about public-works projects, such as repairing bridges, but Howard warns that such projects are difficult to carry out: “Decade-long review and permitting procedures more than double the effective cost of new infrastructure projects.”2 Anybody can sue for any reason, and thus make a building project more difficult.
The old acronym was NIMBY — Not In My Back Yard. The new acronym is BANANA — Build Absolutely Nothing Anywhere Near Anything. Imagine trying to build the interstate highway system today! Of course, not all buildings and highways should be built, and Howard understands this; he isn’t advocating an end to all lawsuits, he’s advocating a balance between two extremes.
I recently read a column by Michael Barone, one of our most sensible columnists. Barone said that Trump might be effective at cutting through the thicket of regulations. Barone thinks that Trump and Howard might be moving toward the same goal.
Howard says that a multitude of rules and regulations prevent people from acting intuitively. If a pianist thinks about how to play, he can’t play.
A centipede was happy — quite!
Howard quotes Thomas Edison: “Hell, we ain’t got no rules around here, we’re trying to accomplish something.”
One of my complaints about the legal system is that it’s too kind to individuals, too cruel to the public as a whole. The City of New York budgets almost $1 billion per year to settle lawsuits. This money helps only a few individuals, and hurts everyone else. New York paid $9 million to a person injured in a ferry accident, $12 million to a person injured by a falling branch in Central Park, $40 million to the “Central Park Five,” who were convicted of a crime they didn’t commit.
I think Howard would agree with me that our legal system is too preoccupied with individuals; Howard says we should judge law by its effect on society, not by individual situations. But Howard doesn’t think we can fix our legal system simply by limiting awards to individuals, simply by “tort reform”; we need more fundamental reforms, more sweeping reforms.
An article in the Weekly Standard discusses Berkeley’s online classes (sometimes called MOOCs, Massive Open Online Courses). A deaf woman protested that Berkeley’s online classes weren’t suitable for deaf people, and the Department of Justice told Berkeley that it was violating the Americans With Disabilities Act. So Berkeley removed all of its online classes.
The Americans With Disabilities Act, passed in 1990, “spread a feast for plaintiffs’ lawyers.” A book called The Litigation Explosion, by Walter Olson, mentions “the deaf patient awarded $400,000 because his rheumatologist failed to provide a sign language interpreter.” The Weekly Standard article concludes with a quote from Danton: “The revolution eats its own children.”
Twenty years ago, my book group discussed Howard’s Death of Common Sense, and I exchanged e-mail with Howard. I mentioned Nietzsche’s concept of misarchism.
Our politics have become polarized — Right vs. Left, FoxNews vs. MSNBC, Trump vs. Sanders, etc. Some people feel that we need a “New Center”. Howard and his Common Good can help to fill that need, as can the NoLabels organization.
A. For young scholars in the humanities, there’s good news and bad news. The good news is that they no longer need to read Nietzsche because he’s been rendered obsolete by a new philosopher from Massachusetts. The bad news is that they have to read the new philosopher from Massachusetts, and he’s said to be boring and long-winded.
B. A liberal is someone who’s concerned about the number of criminals who are incarcerated. A conservative is someone who’s concerned about the number of criminals who aren’t incarcerated.
A. I recommend a documentary called Following the Ninth: In the Footsteps of Beethoven’s Final Symphony (2013). It describes how Beethoven’s music has accompanied various political movements. It’s slightly over an hour long. (Trailer here.) The director, Kerry Candaele, made two other Beethoven documentaries.
B. I also recommend a documentary called Best of Enemies (2015), which deals with William F. Buckley and Gore Vidal — more specifically, the commentary provided by Buckley and Vidal at the 1968 party conventions. Buckley and Vidal clashed on policy, and also clashed on a personal level. At one point, Buckley threatens to “sock you in your goddamn face.” Buckley regretted this outburst until his dying day; he regretted that he didn’t control his emotions. Elsewhere I discussed the importance of controlling emotions:
C. I recommend the movie Bridge of Spies (2015), which was popular with critics and the public. It’s based on actual events — a spy exchange that took place during the Cold War on a bridge in Berlin. The exchange was negotiated by lawyer James B. Donovan (Tom Hanks). James B. Donovan shouldn’t be confused with William J. Donovan, who fought in World War I, then became leader of the OSS during World War II.
D. I don’t recommend the movie Pulp Fiction (1994), which created a sensation with critics and with the public. Every scene contains violence, every sentence contains “fuck.” Pulp Fiction lacks truth, lacks genuine emotion. It’s a movie about movies, but I think the best movies are about life. I have to admit, though, that Pulp Fiction is playful, creative, and occasionally funny.
E. La La Land
People often ask me, “Is there a market for philosophy? How do you make a living?” In response to one recent inquiry, I wrote thus:
A poet recently suggested that I submit something to a magazine. I responded,
Stratfordians are trumpeting a new “discovery”: they say that Heather Wolfe, a curator at the Folger Library, has discovered a “smoking gun.” The discovery concerns a feud over the Stratford man’s attempt to obtain a coat-of-arms. According to some Stratfordians, the feud reveals that the Stratford man is the true author: “In the Brooke-Dethick feud, it becomes clear that ‘Shakespeare, Gent. from Stratford’ and ‘Shakespeare the Player’ are the same man.”
But to call someone a player doesn’t make him a player, and it certainly doesn’t make him a playwright. The Oxford Theory has never hinged on the argument that the Stratford man wasn’t a player; Oxfordians may or may not regard the Stratford man as an actor. My own essay on the Shakespeare controversy doesn’t take a position on whether the Stratford man was an actor.
Wolfe reminds us that the Stratford man was a buffoon, despised by important writers like Ben Jonson:
|1.|| See Nietzsche’s Genealogy of Morals, II, 12 back|
|2.|| Quoted in a Michael Barone column. Click here for a Howard essay about how the government can save $1 trillion. back|