I recently read Philip K Howard’s The Death of Common Sense: How Law is Suffocating America. It is an infuriating look at how politicians have legislated responsibility and judgement out of consideration when coming up with ever more exact, non-sensical laws. Even Mother Teresa could not get a break from our bureaucratic nightmare:
In the winter of 1988, Mother Teresa’s nuns of the Missionaries of Charity walked through the snow in New York’s South Bronx in their saris and sandals looking for abandoned buildings to convert into homeless shelters. They found two, which New York offered them at $1 each. The nuns set aside $670,000 for the reconstruction, then, for a year-and-a-half, they went from hearing room to hearing room seeking approval for the project.
Providence, however, was no match for law. New York’s building code requires a lift in all new or renovated multiple-storey buildings of his type. Installing a lift would add upwards of $130,000 to the cost. Mother Teresa didn’t want to devote that much money to something that wouldn’t really help the poor. But the nuns were told the law couldn’t be waived even if a lift made no sense.
The plan for the shelter was abandoned. In a polite letter to the city, the nuns noted that the episode “served to educate us about the law and its many complexities.”
What the law required offends common sense. After all, there are probably over 100,000 walk-up blocks of flats in New York. But the law, aspiring to the perfect abode, dictates a model home or no home.
The book is full of examples like this one, each one showing exactly how critical thinking and common sense have been regulated out of laws in favour of precision. And, as Howard puts it, the more precise the rule, the less sensible the law.
America’s modern legal system has achieved the worst of all worlds: a system of regulation that goes too far —while it also does too little. A number of years ago, two workers were asphyxiated in a Kansas meat-packing plant while checking on a giant vat of animal blood. OSHA did virtually nothing. Stretched thin giving out citations for improper railing height, OSHA re-inspected a plant that had admittedly “deplorable” conditions only once in eight years.
Then three more workers died —at the same plant. The government response? A nationwide rule requiring atmospheric testing devices in confined work spaces, though many of them have had no previous problems. Most such legal dictates are stacked on top of the prior year’s laws and rules, the result is a mammoth legal edifice: federal statutes and rules now total about 100 million words. The US Federal Register, a daily report of new and proposed regulations, increased from l5,000 pages in the final year of John Kennedy’s presidency in 1963 to over 68,000 pages in the second year of Bill Clinton’s.
The second chapter of Howard’s book is entitled The Buck Never Stops. This phrase is what came to mind as soon as I heard all of the responsibility-dodging going on in Louisiana in the wake of Hurricane Katrina’s destruction. And it would make the perfect title for this interview with the mayor of New Orleans, Ray Nagin, in which he expresses his frustration at the lack of action taken by authorities at all levels, and their failure to give him any power to act now. Some bites from Nagin’s outburst:
Now, I will tell you this — and I give the president some credit on this — he sent one John Wayne dude down here that can get some stuff done, and his name is [Lt.] Gen. [Russel] Honore. And he came off the doggone chopper, and he started cussing and people started moving. And he’s getting some stuff done. They ought to give that guy — if they don’t want to give it to me, give him full authority to get the job done, and we can save some people.
…[D]id the tsunami victims request? Did it go through a formal process to request?
…But we authorized $8 billion to go to Iraq lickety-quick. After 9/11, we gave the president unprecedented powers lickety-quick to take care of New York and other places.
Now, you mean to tell me that a place where most of your oil is coming through, a place that is so unique when you mention New Orleans anywhere around the world, everybody’s eyes light up — you mean to tell me that a place where you probably have thousands of people that have died and thousands more that are dying every day, that we can’t figure out a way to authorize the resources that we need? Come on, man.
The emphasis on process is mine. By using this word, Nagin has pinpointed the problem with American law. Sure, we need due process in our justice system, and in other areas where we do not wish the government to use (blatant) coercion against its citizens. But there are other instances – fixing a leak in a levee on an urgent basis, for instance – in which procedure more often than not gets in the way of a sensible result. In Howard’s words:
[M]odern process barely distinguishes among the vast range of government acts, and has thrown its cloak over every decision. Ordinary decisions are subject to rigid formalities taken as seriously as the due process protection in a criminal trial. The actual goals of government are treated like a distant vision, displaced by an almost religious preoccupation with procedural conformity.
…Individual initiative in government has shriveled up and lies dormant. Process has, indeed, rendered initiative unlawful…Irregularities are dangerous, someone might argue; these procedures serve important practical purposes, like preventing fraud and getting the best price, and it would be unwise to permit exceptions. But serving practicality, as anyone within ten miles of a government contract knows, is the last thing these procedures do. Their inefficiency…is legendary. Fraud, notwithstanding all the procedural layers, happens all the time.
…Orthodoxy, not practicality, is the foundation of process. Its demons are corruption and favoritism, but the creed of this orthodoxy is a perfect uniformity. Only if all things are done the same way can government be fair. Sameness, everywhere for everybody, is the operating instruction of modern government…But concepts like equality and consistency are absolute; they have no logical stopping point; there is no place where they say, “Oh, I certainly didn’t mean that a broken lawnmower should be treated as a federal case,” or, “The Chicago commissioner shouldn’t worry about bidding procedures with the river only a few feet above the leak.”
Where do you draw the line? No one wants to take that risk, so the line is never drawn. Shuffling to the rhythms of process, answering any potential complaint with one more procedure, becomes what government does.
I may be preaching to the choir here, but surely most of us have a strong sense of the government’s ineffectiveness, do we not? Which is why I find it so strange and irritating that so many people in Louisiana believed that the state would save them. It would be a nice thing to believe, a comforting thing to believe, but when push comes to shove, do you really believe that this group of responsibility-dodging, procedure-obsessed egotists would save you? Would you entrust them with your life, the lives of your family, your home? Only cognitive dissonance would allow for such a positive conclusion.
At some point, the wishful thinking of those in danger should have disappeared in favour of reason. For many, it did. For too many others, it did not. If anything positive is to come out of this tragedy, I hope it is a wide awakening across America and other countries that the state is not your friend.
Cross-posted to JackieDanicki.com
While I sympathise with the sentiment, it’s sometimes to make the best compromise between sensible regulation and over-regulation. Under regulation can sometimes lead to huge legal costs.
To give an example. A friend of mine once worked for a printing and bakery equipment manufacturing company. This equipment used magnetic safety interlocks on their equipment as required by UK regulations. Magnetic interlocks are better than mechanical interlocks because mechanical ones can be ‘defeated’ by workers or employers using fingers, stray or accumulated waste and lots of other means. Magnetic interlocks can’t easily be overridden.
However, magnetic interlocks were much more expensive and so the US importer of their equipment stipulated mechanical interlocks to save money as magnetic ones were not mandatory in the US. Sure enough, sooner or later a worker in the US suffered a serious injury as a result. Result: Huge court case and huge lawyers fees arguing over whether the manufacturer/importer was liable, what safety standards were appropriate and on and on and on.
You could say that this was a result of poor regulation in the US which lead to higher legal costs (and a tragedy).
Generally I share your view of bureaucratic over-regulation and absurd examples surely occur all the time, but I’m not sure how we ensure a proper compromise in every case. Perhaps someone here can propose an efficient free market solution?
Or perhaps it is the lunatic US legal system which allows a person to sue when they are injured due to their own stupidity, such as if they over ride a saftey system and injure themselves. Unless some supervision told him to do that, which changes things of course.
In Mother Theresas case, she had it comming. You can’t possibly live your life as a villain from a Ayn Rand-novel and expect people to treat you rationally.
Not that it distracts from your central point but Mayor Nagin and the city and state governments are the ones who bear primary responsibility for most the breakdown in Louisiana. Legalistic wrangling at the Federal level doesn’t seem to have been a major factor.
Most the response to a large natural disaster is the responsibility of the local and state governments. For example, the National Guard is under the command of the each states governor. (It appears the Bush may have actually broken the law in ordering regular military units into the state.) Evacuation planning and implementation are likewise state and local responsibilities.
It really looks now like Nagin basically went limp in face of the hurricane. Neither he nor the governor issued the mandatory evacuation order until prompted to by the president. Once they did issue the order, they didn’t activate any of the contingency plans for evacuating the poor and the infirm. The city does not appeared to have taken any steps to protect physical assets like police and emergency vehicles from floodwaters. The list goes on.
I think that Nagin and the entire political class of Louisiana mentally shoved all the responsibility for dealing with a disaster onto the Federal government. Now they are angry that the Feds can’t pull a rabbit out of their hat.
Interesting point, Shannon and it would be good to develop that to see what really went wrong and exactly who dropped the ball.
Agreed. From what I know of Nagin, he is far from the angel many are making him out to be. But I am glad that he went a little ballistic about this. I cannot help but wonder if anyone will be willing to put their hands up and say that they messed up. If I were a betting woman, I know where my money would be…
Perry de Havilland,
I wouldn’t be surprised if the ball was dropped at the federal level. FEMA has never worked well and has come in for serious criticism after every major disaster.
However, it is clear now that the critical failure was the incomplete evacuation of New Orleans which was a state and local responsibility. Worse, the exact same pattern of evacuees occurred only last year during hurricane Hugo so the authorities can not claim they had no warning that large numbers of the poor and infirm would be left in the city. The existing emergency plans called for using public transportation to evacuate those who could not transport themselves but it was never activated. In addition, a disaster simulation based on this exact scenario conducted by FEMA last year concluded that people in the region could go without outside help for several days.
There really isn’t any way that state and city authorities can claim they were caught by surprise or that they did everything possible to safequard the people.
Regardless of what might have gone wrong at the federal level, the people wouldn’t have been in harms way in the first place if the local authorities had done their jobs.
A very good post, but a few comments.
New Orleans and Louisiana are two of the most corrupt political entities in the country. It is no surprise that this entire affair was mishandled at these levels, which are the main points of response both before and after any kind of emergency.
I don’t know how such emergencies are handled in Britain, for example, but in the US, state Governors have a great deal of power to organize, mobilize resources, and commandeer needed people, funds, and equipment. My impression is that the governor of LA did little before, and dithered afterwards.
Also, it must be noted that much of the second guessing and “gotcha” type criticism comes from the need for constant reevaluation and rehashing by the 24-7 news outlets in order to fill the hours. Anybody who will say something controversial is prized because then the talking heads have another bone to chew on for a few hours.
It makes no difference if the citic is politically motivated or even particularly informed, as long as they say something dramatic. In fact, much of the supposedly superior round the clock news coverage is nothing more than a melodrama being played out in real time. The better the soap opera, and the sob stories, the better the ratings among those who would normally be watching Judge Judy or Jerry Springer.
And, finally, it simply must be plain to any disinterested observer that a great deal of the hullabaloo is politically motivated as a screen to attack the Bush Admin. I don’t care for the guy, but the idea that he caused the disaster by rejecting Kyoto, or that the relief effort was delayed by Iraq or racism or some other nonsense is just that—nonsense.
I live in flood country. When the whole countryside is covered by several feet of water, you just can’t get from here to there with big trucks or other transport.
Once the hype dies down a bit, some realistic evaluation of what worked and what went wrong can be made. Given the utterly poisonous nature of the political climate, however, I don’t expect to see much rational discussion for a while, if ever. Too bad. I’m sure there are many lessons to be learned for the next time. There’s always a next time.
Shannon,
I agree with most of what you say except for one implied statement. Even in cases of natural disasters I don’t think the government should have the authority to order mandatory evacuations. Declare an evacuation, yes. But not a mandate.
If my life insurance puts a non-payment rider for disobeying an evacuation, fine.
Ditto for health.
If the police won’t respond to my calls, fine.
If the fire department doesn’t respond, fine.
If a rescue service says they won’t rescue me, fine.
If the evacuation route later fails and I can’t change my mind, so be it.
In short, I should face the full consequence of a really bad decision. But I don’t think forcing someone to abandon their property is a power government should have.
Anyone have other thoughts on this?
Shannon
It appears the Bush may have actually broken the law in ordering regular military units into the state He can do this so long as the units do not engage in any sort of law enforcement activity. For example, they can free-up Guard units doing logisitcs to move over to crowd control or interdiction or similar law enforcement activity. Using regular military forces inside the US are covered by the Posse Comitatus Act of 1874.
Midwesterner,
How many of those who died in the Katrina catastrophe chose not to evacuate? When you died and became one of the satistics, your loved ones would cry and wail in front of CNN, someone started to sue, some politicians’ cushy jobs died with you for not doing their jobs of rescuing you from yourself. Hence we have all these idiotic CYA laws.
On the other hand, if you were forced to evacuate, and Katrina hit Houston instead, and your New Orleans home was looted while you were gone, you start fuming in front of CNN, some politicians got blamed for forcing you to leave ….
ic, yup. That’s pretty much the case.
Since it all revolves around CYA, why not try this as a step in the right direction. Require a legally binding, informed waiver of liability.
I couldn’t begin to guess how many waivers of liability I’ve signed over the years for all kinds of things. Why not try it for these cases?
There is a case that happened here that illustrates the failure of regulation and has been a predictable inspiration for more regulation. Not to mention a lot of law suits.
http://www.jsonline.com/news/metro/mar01/van25032401a.asp(Link)
It has everything. Juvenile employees. Driver with a revoked license. A company owner with multiple drunk driving convictions. Disputed ownership of company. Drug use. And a lot of fatalities. You name it.
And what is the proposed solution? More regulation for these chronic regulation ignorers to ignore. Both the state and the federal politicos got into this.
http://www.travelingsalescrews.info/pdf/wi%20senate%20bill%20sb%20251.pdf(Link)
http://thomas.loc.gov/cgi-bin/query/C?c106:./temp/~c106p8acmc(Link)
Regulation never solves problems. Especially when the regulations already in place are being ignored. When do we realize that the problem is not a shortage of regulations? They are just a feel-good to people who want to “do something”. Responsible people don’t need them. Irresponsible people don’t obey them.
As a small business person, I continuously found myself facing competitors who ignore laws and profit from it. Our legal system doesn’t enforce regulations completely or consistently and our tort system is a random crap shoot.
I’ve said it in other threads and I’ll repeat it. Consistent continuous full enforcement of ALL laws to ALL people including police, judges, and politicians. Let’s start by binding congress with it’s own laws. If a law is unenforceable, unpopular, counterproductive, whatever, it should not get limited enforcement. It should be re-written or struck from the books.
HJHJ, it seems to me that your example rather supports the free market argument. It was the manufacturer – a private organization – that was suied, was it not? Legal liability is the only incentive for private organizations to do the right thing, but it is also often the major incentive for governmental bureacracies not to do the right thing.
Perry,
I don’t know the details of the case but I don’t believe that it was the worker’s fault.
As for Alisa’s comment, I believe that they tried to sue the manufacturer because the importer wasn’t big enough – if the ‘victim’ won, the importer would have declared bankrupcy. I believe that the manufacturer was cleared because they only supplied what was explicitly requested to an intermediary, but whether and where eventual liability was assigned I don’t know.
You can often see these things in organisations like companies and observe behaviour in a way that you could only do on a government level by moving country to country.
I’ve worked in some big old lumbering giants. Chock full of bureaucrats creating bureaucracies to deal with failures in the other parts of the bureaucracies. Want a £20 piece of software to do a particular job? Fill out form XYZ/123/ABC which has to be signed from everyone from senior executive downwards. Wait 2 months for it to go through various committees to approve it.
Then again, I’ve worked in small, growing companies. Want a £20 piece of software? Ask the boss who asks if you’ve got a credit card. Order that day and it arrives by the end of the week. Boss adds £20 into the pay to cover the cost.
The problem with the big company is that after a while, all it attracts to it are people who can play political games for a large salary and bonus, because genuinely creative people get the heck out. After a while, it creaks and falls over.
Government is like this now. With the exceptions of a few areas, government does not attract innovative thinkers. And very few people with a mind to be a public servant are attracted to it, because they know how much they will have to fight the machine to achieve anything.
What’s the job of 95+% of MPs now? Lobby fodder, social work and the hope that they can reach the top and change the system. A Wilberforce or a Churchill would probably choose to work for a pressure group or a corporation (consider how powerful Rupert Murdoch is compared to most back benchers).
The system is the fault of a huge number of people in the country. They don’t want MPs to tell them that they can’t do anything about the price of a Chelsea shirt, and that if they can’t afford it, then it’s too bad, and that’s the free market. They want to hear them tell them that they’ll do something about it.
We, generally, as a nation have outgrown realistic expectations and gotten lazy. We expect every building to be 100% sound. We expect politicians to make promises that they will bring in legislation to ensure that something never happens again, regardless of the irritionality of such a statement.
What are the expectations in Poland, Romania, China or Turkey? Much lower, but competing in the global market, very attainable (like my consulting costs vs those of certain large consulting companies).
More likely the glaring incompetence and inefficiencies will be blamed on ‘Washington’ – i.e. Bush – ‘global warming’ – i.e Bush – low budgets while billions are spent ‘over there in Iraq’ – i.e Bush – and so on ad nauseam until the good people understand that if the government failed, it’s because there was not enough of it, and could you please cough up more money to rebuild, hire more civil servants, build more levees, pay for more fancy emergency rescue services etc etc.
Just like the biggest intel failure in a decades gave the CIA more money and power.
The New Orleans mess is a third world city whose condition has been bared by the forces of nature. Ray Nagin is the perfect tinpot dictator: not real smart but extremely wily. He’s so slithery you can almost hear his rattles.
One of the reasons the tech problems in Iraq are being addressed is that the soldiers are doing some of it themselves. In peacetime, the reach of DoD is immense. In the fast flight of battle engagements, soldiers don’t requisition supplies, they buy them online, get them from home, or improvise.
That is one story I’m looking forward to reading.