In 2011, writes Philip K. Howard in his new book “The Rule of Nobody: Saving America from Dead Laws and Broken Government,” “firefighters stood on the beach in Alameda, California, and watched a suicidal man flailing in water 150 yards offshore.”
None of them moved to rescue the man, because, as a result of budget cuts, they hadn’t been recertified in “land-based water rescues,” and therefore certain “legal liabilit[ies]” could arise. So they watched him struggle for an hour, and then he drowned.
This tragic incident highlights the key points in Howard’s convincing, provocative argument. The United States, he writes, “is losing its soul. Instead of creating legal structures that support our values, Americans are abandoning our values in deference to the bureaucratic structures.”
Most importantly, informed individuals and groups have been progressively robbed of the legal power to make certain decisions, such as which bridges need to be built and whether nursing homes are up to code.
Instead, we litigate everything, which offers up a million opportunities for self-interested actors to get involved in decisions where they shouldn’t play a part. We live in an increasingly sclerotic system in which laws are piled atop laws, many of them “dead” in the sense that the reason they were originally passed no longer applies.
For example, Howard points out the government still hands out shamefully large agricultural subsidies because of laws passed to counter the Great Depression, which occurred at a time when small family farms constituted most of American agriculture — not the case in today’s age of mammoth agribusinesses.
Now, given the politically divisive age we live in it’s easy to roll one’s eyes at any polemical book that criticizes governmental regulation.
Luckily, that’s not the sort of argument Howard is making. He acknowledges the validity of the conservative argument against “grotesque inefficiencies and abuses’’ among agencies but also recognizes that liberals “are also correct that we need government. Like it or not, regulatory oversight is essential for us to feel free. Practically everything we do is dependent on people we don’t know.”
What he wants is for civil servants and others to have the freedom to do their jobs. Take nursing homes, for example, which are regulated via an endless mishmash of ultra-specific laws. It varies state by state, but Howard cites as examples guidelines for how high windowsills can be, for how long patients can go between meals.
Obviously, the idea here is to protect the elderly, but this backfires: One can follow the letter but not the spirit of the regulations by, for example, waking up a peacefully sleeping patient just to feed her, whether or not she’s hungry (so as to check off a requirement on a form), or wheeling a sleeping patient into an activity room so as to fulfill her mandated activity quota, disturbing other residents in the process.
Other countries, Howard explains, don’t operate this way. Elder care is a principle-based undertaking, not a rule-based one. So a few basic guidelines are set out — the elderly should be treated humanely, say, and nursing homes should be kept welcoming and homelike — and those who run nursing homes given the discretion to meet these standards without having to keep a million different rules in their heads.
To an American, of course, this idea comes across as a bit nuts. We’re so used to lawsuits, to confrontation, to the idea that only rules can keep people in line. But the fact that Howard’s clear, levelheaded descriptions of how things are done elsewhere come across as so unrealistic proves his point: We really need to figure out a better way to do operate, lest the country grind to a halt.
Jesse Singal is a senior editor at NYMag.com.