A Diagnosis Of Communal Insanity
The Death Of Commonsense by Philip Howard (1994)

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.

Today (circa 1996), laws control much of Americans' lives: fixing potholes, running schools, regulating day-care centres and the workplace, cleaning up the environment — and deciding whether Mother Teresa gets a building permit.

The US regulatory system has become an instruction manual, telling citizens exactly what to do and how to do it. The laws have expanded like floodwaters breaking through a dyke — drowning the society they were intended to protect.

In 1993, at a primary school in Long Island. the local fire chief appeared around Halloween dressed as Officer McGruff. the police dog that promotes safety. He noticed all the student art tacked to the walls. Within days. McGruff had done his duty: the art was gone.

Why? The New York fire code addresses this public hazard explicitly:

"Student-prepared artwork must be at least two feet (60 centimetres) from the ceilings and ten feet (three metres) from exit doors and not exceed 20 per cent of the wall area."

No-one had ever heard of a fire caused by children's art. The school principal, accused of permitting a legal violation, suggested that he had used a rule of thumb "on how much to decorate."

Liz Skinner, a first-grade teacher, was confused: "The essence of primary education is that children show pride in their work." Now, said one observer, the school looked "about as inviting as a bomb shelter."

Governments have imposed fire codes for centuries. But only our age has succeeded in barring children's art from school walls.

Safety also was the goal of US Congress when in 1970 it created the Occupational Safety and Health Administration (OSHA). For 25 years OSHA has been hard at work, producing over 4000 detailed rules that dictate everything from the ideal height of railings to how much a plank can stick out from a temporary scaffold. American industry has spent billions of dollars to comply with OSHA'S rules. All this must have done some good.

It hasn't. The rate of workdays missed due to injury is about the same as in 1973. A tour through a Pennsylvanian brick factory indicates why.

People have been making bricks more or less the same way for thousands of years. No hidden hazards have ever been identified. But OSHA inspectors periodically visit this factory and walk around with measuring tapes. They are especially interested in railings, citing the factory for having railings of the wrong height. This factory has never had a mishap related to railings. But inspectors won't discuss if a violation actually has anything to do with safety. They are just traffic cops looking for violations. "We've done everything they asked for the last 20 years." says Bob Hrasok. the factory's manager in charge of regulatory compliance, As a result, warnings are posted everywhere. For example, a large HAZARDOUS MATERIAL sign was placed on one side of a storage shed — holding sand, OSHA categorises sand as a hazardous material because sand — identical to the beach sand you and I sunbathe on — contains a mineral called silica, which some scientists believe might cause cancer under some conditions.

In 1994, the brick factory was required to include with shipments of brick a form describing, for the benefit of workers, how to identify a brick (a "granular solid, essentially odourless," in a "wide range of colours") and giving its specific gravity. In fact, OSHA issued 19,233 citations in 1994 for not keeping its forms correctly. According to one expert, filling in these forms takes Americans 54 million hours per year.

Solid, objective rules, like the precise height of railings, satisfy lawmakers' longing for certainty. Human activity, however, cannot be so neatly categorised. And the more precise the rule, the less sensible the law.

Until recently, Dutch Noteboom, 73, owned a small meat-packing plant in Oregon. The US Department of Agriculture (USDA) had one full time inspector on the premises and the supervisor who visited regularly. This level of attention is somewhat surprising, since Noteboom had only four employees. But the rules required it. Every day the inspector sat here, "often talking on the phone," says Noteboom. But they always found time to cite him for a violation: one was for "loose paint located 20 feet (six metres) from any animal."

"I was swimming in paper work," says Noteboom. "You should have seen all the USDA manuals. The regulations drove me out of business."

In America, the government's laws have become like millions of trip-wires, preventing people from doing the sensible thing.

On the banks of the Mississippi River in Minneapolis, a mountain of 75,000 tonnes of lime sludge was built up over 60 years, the by-product of a nearby plant. By the early 1980s, it sat in the path of a proposed highway.

Government rules designate any material with a pH of over 12.5 as "hazardous waste." That may generally make sense, but not for lime, which is used to improve the environment by lowering the acidity of land and water. The mountain of lime, whose alkalinity was also raised by dampness, had a pH of 12.7. The highway was stopped dead in its tracks for many months because Minnesota had no licensed hazardous-waste disposal site for the lime.

Finally, it was pushed onto adjoining land, where, with the help of the sun, it dried its way into lawfulness.

People tend to have their own way of doing things. But law, trying to make sure nothing ever goes wrong, doesn't respect the idiosyncrasy of human accomplishment. It sets forth the approved methods, in black and white, and that's that. When law notices people doing it differently, it mashes them flat.

Gary Crissey and a partner have run a tiny coffee shop in New York for years. Recently, some customers were dismayed when served with disposable plates and forks. Crissey explained that restaurant inspectors had stopped by and told him the law would not let him operate if he continued to wash dishes by hand. The code requires an automatic dishwasher or a chemical process. But the idea of using chemicals was unappealing, and Crissey's coffee shop is so small that it has no room for a dishwasher. The only solution was disposables. Now everything is plastic.

Today we have a world in which people argue not about right and wrong, but about whether something was done the right way. With enough procedures, it's argued, no bureaucrat will ever again put his hand in the till. And so, by 1994, the Defence Department was spending almost half as much on procedures for travel reimbursement ($2 billion) as on travel itself ($4.6 billion). Plato argued that good people do not need laws to tell them to act responsibly, while bad people will find a way round law. By pretending procedure will get rid of corruption, we have succeeded only in humiliating honest people and have provided a cover of darkness and complexity for the bad.

By the mid-1980s. Brooklyn's Carroll Street Bridge, built in 1889, was in disrepair. The city budgeted $4.6 million for an overhaul. Under procurement procedure, the renovation was estimated to take seven years. But with the bridge's hundredth anniversary approaching, Sam Schwartz, the chief engineer responsible for bridges, thought the bridge should be fixed in time for a centennial party. Eleven months later, at a cost of $3.3 million, the bridge had been fixed. Practically the entire neighbourhood participated in the centennial party, by all accounts a wonderful affair.

For his leadership in completing the job in one-seventh of the time and at 70 per cent of budget, Schwartz received a reprimand.

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.

Whenever the rules are eased, however, America's energy and good sense pour in like sunlight through opened blinds. After the 1994 earthquake in Los Angeles toppled freeways, California Governor Pete Wilson suspended the thick book of procedural guidelines and gave incentives for speedy work.

From law's perspective, the Los Angeles repair project was a nightmare of potential abuse. The process wasn't completely objective: almost nothing was spelled out to the last detail. When disagreements occurred, private contractors and state bureaucrats had to work them out. Rather than specifying every iron rod, state inspectors took responsibility for checking that the work complied with general standards. The result? Instead of a two-and-a-half-year trudge through government process, the Santa Monica Freeway was rebuilt in 64 days to a higher standard than the old one. "I'm proud," said Dwayne Barth, a construction supervisor. "It feels good having a stake in rebuilding L.A."

When the rule book got tossed, all that was left was responsibility. No-one decided to spite Mother Teresa. It was the law. No-one wants to take down children's art. It's the law.

"The idea of law" Yale professor Grant Gilmore cautioned in 1977, has been "ridiculously oversold."

The rules, procedures and rights smothering Americans are aspects of a legal technique that promises a permanent fix for human frailty. This legal experiment, we learn every time we encounter it, hasn't worked out. Modern law has not protected people from stupidity and caprice, but has made stupidity and caprice dominant features of society.

Relying on individual responsibility—rather than the law—to provide answers is not a new ideology. It's just common sense.