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.
Philip Howard
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!
Until a toad in fun
Said, “Pray, which leg moves after which?”
This raised her doubts to such a pitch,
She fell exhausted in the ditch
Not knowing how to run.3
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.”
Patent law is another area of abuse. “Patent trolls” accuse big corporations of infringing their patent, then threaten a lawsuit, hoping for a lucrative settlement. Patent trolls often brought suits in districts that were known for being friendly to them. In these districts, big corporations like Samsung would curry favor with the public by building skating rinks, etc. But in May 2017, the U.S. Supreme Court ruled that “patent litigation cases must be heard in the state in which the defendant is incorporated.” Another way to defeat patent trolls is by making the loser of a suit pay his opponent’s court costs; this is often done in Europe, and occasionally done in the U.S.
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, is planning another Beethoven movie, Love & Justice: In The Footsteps of Beethoven’s Rebel Opera.
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:
| When Ted Kennedy first ran for the Senate, he had a debate with a primary opponent (a fellow Democrat). His older brother, John Kennedy, advised him “he’s going to hit you hard, and you’re going to have to keep your cool.” Ted was indeed attacked, but he assumed a posture of “silent superiority”... and he emerged victorious from the primary. |
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. When Harry Met Sally... (1989) is a romantic comedy with some NewYorkCity scenes. It will make you laugh, but it probably won’t make your list of all-time favorites. Click here for an article about places in the movie.
F. La La Land
Great movie, everybody’s favorite. Inspired by old musicals. Does a good job of depicting the struggling artist, who’s torn between his love of art, his desire for popularity, and his need to make money.
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:
| I knew by age 20 that I wanted to write philosophy, and I knew I couldn’t make money doing that. It took a big effort to become a philosopher. It was like trying to get a big plane off the ground. Sometimes it felt like I was carrying the plane on my back. I had no energy leftover for other things, so I didn’t consider law school or business school or any career. Nietzsche never talked about careers, so I never thought about careers.
I knew no other philosophers in our society, in our time, and I knew of no place in our society for a philosopher. The only people I could talk to were the “mighty dead,” and they couldn’t help me to make a living. So I lived with extreme frugality — like Thoreau at Walden Pond. Since I felt that I couldn’t make ends meet by earning money, I tried to make ends meet by cutting expenditures. What makes this difficult is that the people around you don’t understand what you’re doing, or why you’re doing it, and resent the fact that you need help, but can’t offer help in return. You’re a needy person, hence you’re an unpopular person, a persona non grata. So the life of a philosopher in our time is a difficult one, and just to survive is no small achievement. I’ve survived for 55 years. I tried to grow my modest savings through careful investing. I earned small sums at odd jobs. I taught myself database programming, and worked for some small businesses. I’ve been writing philosophy since 1984, but I’ve never made a penny, and never published a word in the U.S., or a word in English. I’ve self-published in the U.S., and published on the Internet. My late wife was from China, and she translated my work into Chinese. She also had contacts in China, so my work was published in China and Taiwan, and was well-received in both countries. My work was recently re-published in China. I think my work will be well-received in many countries, if I can make a start. China has probably the longest and richest literary tradition in the world. The Chinese who first read my work were part of this tradition — older men whose education preceded the Communist Revolution of 1949. They appreciated my work as literature, apart from any specific theories or positions. And they were respected figures in the Chinese literary world, so they could help me to publish. At present, I have few contacts in the U.S., and few hopes of publishing, not to mention acquiring a reputation. |
| The only U.S. magazine that knows my name is The Weekly Standard (I’ve met Bill Kristol). I recently approached them, unsuccessfully, with an Ibsen essay. The magazine best suited for my kind of writing may be The New Criterion. I’ve submitted to them, and I also tried writing to Hilton Kramer at his Maine retreat. No luck.
Without some sort of connection, it’s difficult to publish in a magazine. Magazines publish their “regular writers,” they publish the same writers issue after issue, they don’t need a writer from out of the blue. Many magazines won’t even consider an unsolicited piece. The aspiring writer, according to the old tale, covers his walls with rejection slips. But more commonly, I get no reaction at all, just silence. I dream of rejection slips! In China, I had the sort of connections that are needed, and I published in several leading Chinese magazines. It may seem that I avoid the world. But I think philosophy requires a greater degree of isolation than poetry, especially during the early period, the formative period, the period of commitment (the take-off, if I can use an aviation metaphor). During this early period, a high degree of isolation is required. Then later it becomes difficult to get back into society. If I’m accused of avoiding the world, I would respond, “The world and I avoid each other, it’s a mutual thing, a two-way street.” |
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:
| Ben Jonson, in his satire Every Man out of his Humour, poked fun at [the Stratford man] as a rustic buffoon who pays £30 for a ridiculous coat of arms with the humiliating motto “Not Without Mustard.” |
| Shakespeare | Sonnet 18 | 1:12 |
| Blake | The Lamb | 1:10 |
| Blake | The Tiger | 1:24 |
| Wordsworth | Daffodils (I Wandered Lonely As A Cloud) | 1:21 |
| Whitman | O Captain! My Captain! | 1:43 |
| Housman | When I Was One and Twenty | 1:13 |
| Yeats | *The Lake Isle of Innisfree | 1:10 |
| Frost | *Stopping by Woods on a Snowy Evening | 1:31 |
| T. S. Eliot | *The Love Song of J. Alfred Prufrock | 8:13 |
| Robert Lowell | *For the Union Dead (video is 8 minutes long, but last half is blank) | 4:00
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| * = read by author |
© L. James Hammond 2017
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| Footnotes | |
| 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.
Update 2017: Another leading columnist is Walter Russell Mead, who currently writes for the Wall Street Journal, and formerly had a blog at The American Interest. Mead specializes in foreign policy.
Martin Wolf is a respected economics columnist; Wolf writes for London’s Financial Times.
back |
| 3. | Wikipedia back |