Jason Hartman hosts Philip K. Howard who is a prominent attorney and commentator. Howard gives us insight into his background as the Founder and Chair of Common Good and author of The Death of Common Sense. He also introduces his latest book, The Rule of Nobody: Saving America from Dead Laws and Broken Government. The discussion centers around whether or not people should trust the government.
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Welcome to the holistic survival show. This is your host, Jason Hartman, where we talk about protecting the people places and profits you care about in these uncertain times. We have a great interview for you today. And we will be back with that in less than 60 seconds on the holistic survival show. And by the way, be sure to visit our website at holistic survival calm, you can subscribe to our blog, which is totally free, has loads of great information. And there’s just a lot of good content for you on the site. So make sure you take advantage of that at holistic survival calm, we’ll be right back. It’s my pleasure to welcome Philip K. Howard to the show. He is a prominent attorney and commentator, he’s founder and chair of common good and author of the classic the death of common sense. And and his newest book is entitled, The rule of nobody saving America from dead laws and broken government. What a timely subject. So Philip, welcome. How are you? Nice to be with you. Well, it’s good to have you. And just to give our listeners a sense of geography. Where are you located?
Philip K. Howard 2:08
I live in New York City.
Jason Hartman 2:10
Okay, well, there is a place with broken government, just like my home state of California. And anyway, so So tell us a little bit about about the organization. And let’s dive into the books and we cannot provide any solutions today.
Philip K. Howard 2:26
Well, common good. I started about a dozen years ago. And it is basically dedicated to creating new government structures that allow people to take responsibility and act on their best judgment. So we had a joint venture with the teachers union and the New York Board of Ed to redesign the system of discipline, so that teachers could maintain order in the classroom. We had a project with the Harvard School of Public Health, to redesign the medical malpractice system, so that doctors could actually trust courts to distinguish between good care and bad care. And pretty much everybody came out for Obama was for it. Romney was for it all the debt reduction conditions, it hasn’t happened, because the trial lawyers have stopped it so far, but it will happen sooner or later, because it’s just crazy to waste. One or $200 billion a year and unnecessary tests and procedures, because doctors justifiably don’t trust the system assesses. So those are two examples. And so
Jason Hartman 3:34
what you what you’re seeing there, just on the on the medical issue, as you’re saying, doctors are over caring because they’re concerned about litigation. Is that is that yes,
Philip K. Howard 3:44
yes. So for example, because when the tragic occurrence of a baby born with cerebral palsy happens, there is almost always a lawsuit for 10 or $20 million. But almost, but nothing the doctor did could have caused the could have caused the problem. It’s, it’s a, it’s basically caused by a virus in the room. So in reaction to the fact that the lawyers will claim this, doctors in America now order 50% more scenario in sections that are medically indicated, which is bad for the mother and bad for the baby and cost a lot of money. Because you have more surgery and more days in hospital and all that sort of stuff, just to cover themselves in case the baby’s born with cerebral palsy.
Jason Hartman 4:38
So that’s fair. I mean, there are most certainly two sides to this tort reform issue and the litigation issue. You know, it’s it’s a love hate relationship with trial lawyers, mostly hate people, grouse about the cost of litigation and so forth until they have their own problem. And then, you know, they don’t want to Go to arbitration. And I can certainly see that side of it just out of curiosity in arbitration is kind of embedded in this whole tort reform issue. What do you think about arbitration?
Philip K. Howard 5:10
Well, it’s interesting. Well, I think arbitrations are very good for some things and not so good for others. But but the system of justice ought to make trials economically available to people who want to get their day in court. The problem is, the system of justice has become so dense that nobody can afford to go through the entire process. So that so that when justice isn’t economically available, you might as well not have a system of justice. But one of the problems where the the tort reformers have the wrong generally the wrong solution. In my view, the right solution isn’t just to limit damages. For example, the right solution is to create a system of justice, that reliably sorts unreasonable behavior from reasonable behavior that requires rulings of law that people can can actually respond to. Today, we have the system where literally anybody can sue for anything, anytime there’s an accident, almost never subject to arbitration, for example. But often the accidents are just the ordinary accidents or wife or kid falls off a seesaw or something. And and the effect of that is the effect of the will the ability to sue for anything, is it? In the case of children’s play? we’ve really done away with all the fun implements of childhood, see saws, merry go rounds, jungle chips, all that stuff is disappeared, because people are scared of getting sued.
Jason Hartman 6:40
Yeah, it’s certainly a complex issue. No question about it. I I don’t know what the what the solution is. But I you know, I think it’s probably to get these awards within reason somewhere and to limit these these venue issues where everybody Sue’s pharmaceutical companies in these certain jurisdictions, because they know that juries will just give them a giant payout. And you’re just not going to have any pharmaceutical companies or the drugs. I mean, they’re already so expensive. And, you know, a lot of that cost in there is probably embedded in litigation, you know. So it’s, it’s a definitely a very complex thing.
Philip K. Howard 7:16
Well, the, the system of justice exists to support a free society. So it auto reliably and economically provide a means of accountability when someone is injured by a mistake, but it should never be a lottery. And it should never subject people who didn’t do anything wrong. Two years of litigation and a potential ruinous verdict?
Jason Hartman 7:42
Yeah. I mean, I certainly can see both sides of it. Look, I’ve been, you know, I’ve been a business owner for many, many years and have lots of business affairs and the world is complicated. There’s a lot of things that maybe I might offer my clients if I wasn’t concerned about liability, you know, and they might benefit clients. But some things I just don’t want to do. Because I don’t want to take the risk. There’s certain certainly a certainly a understanding of both sides. Tell us about your your concept of just so many laws. I mean, you know, I was brought up with the idea that ignorance of the law is no excuse. But there are so many laws, and I had john stossel on the show a while back, he did a great piece on this. Nobody can know all the laws anymore. It’s impossible. You know, in California, every year, there are hundreds of new laws and in the Socialist Republic of California every every year, I mean, how can you possibly keep How can you possibly know the law anymore?
Philip K. Howard 8:38
Yeah, it’s interesting in the name of the rule of law, we’ve created this system with so many laws and regulations, the federal government has over 100 million words of law and regulation and all the states together, all the other states together have more than 2 billion will do. No one can know that no one can know a fraction of that. And so we don’t have the rule of law, we have the rule of well pick your paralysis. Gotcha. You know, anyone, anyone can be indicted now for almost anything they do, because I guarantee you nobody complies with all the laws. There’s studies done, where we’re when a regulatory agency Safety Agency or environmental agency tells a company we’re going to inspect you in two months. So the company with all their lawyers goes out and tries to make sure everything is in shipshape condition, right. And inspectors come and they inevitably find hundreds of violations. Because even a big company with with, you know, scores of lawyers can’t get it right. It’s just impossible. We’ve created this crazy mad cap legal system where people are constantly violating things, frankly, that don’t matter very much most of the time. But they’re but they’re that the regulator’s get some for it.
Jason Hartman 10:03
Yeah. So So there are two, two parts to this, if you will. One is the part of, you know, we have to worry about civil liability from, say clients, customers, you know, in a business, but we also have to worry about liability from the government, which scares me the most frankly, because they have unlimited power, and they make the rules and it’s all set in their venue. So that’s administrative law, where, you know, especially, I mean, just a regular citizen, anybody is out there just breaking laws all the time that they don’t even know exist. But if you’re in business, you are definitely breaking laws all the time. And this really is a scary issue when it comes to civil rights and, and civil liberties. Because it anytime the government, if the if if someone’s got a vendetta against you, for some odd reason, you know, some administrators, some bureaucrats can just haul you in and ruin your life,
Philip K. Howard 11:00
you are cooked. And so, you know, the irony here is that conservatives join with liberals and this idea that that that law should be a kind of a form of micromanagement that if you’re going to oversee nursing homes or worker safety, then then we want to make the laws perfectly clear. That’s the idea perfectly clear, to make sure that the government official doesn’t have any authority to, to, you know, act unreasonably or act like a tyrant. The trouble is, is there’s so many rules and laws, that, that we’ve given the government official, carte blanche, to, to, you know, to act like a tyrant, it would be far better.
Jason Hartman 11:48
If it becomes a case. I mean, I think you’ll make this point. But just one more thing to add to what you’re saying. It becomes an issue of selective enforcement, because there are so many laws, the government cannot possibly enforce them all. So they don’t. So it makes the playing field unlevel in the business world, because one, one business gets the law enforced against them. And the other businesses don’t. And it’s it’s selective. I mean, that’s all fair.
Philip K. Howard 12:15
No, it’s not fair at all. And and it doesn’t serve the regulatory goals, nor does it serve the conservative goals who’s trying to limit government authority, it does the opposite. So ironically, it would be far better in most areas of government oversight, to have the law be radically simpler. I mean, I’m talking about 1%, the number of rules. So so so it reads more like the constitution with interpretive guidelines, where you’re still going to have an argument over whether, you know, something’s reasonably say for, you know, or whatever, but at least the argument is over right and wrong. Now, it’s not over, did you comply with 250, you know, section 250 634, b two, or whatever, whatever. If you know, where the where the argument is, is just over the parsing of words, not right and wrong. So you want if you’re a real person, if you want to understand the law, you need it to be tethered pretty closely, to what real people considered to be the, you know, the main purpose of the goals of the law, not all these technicalities,
Jason Hartman 13:26
you have no question about it. I mean, you know, when you look back at it, the founding fathers, and you look at the original intent of, you know, our Constitution and the Bill of Rights. I mean, was the world just so much simpler back then, that you could do basically set up a whole country on on several pages of paper? Or maybe, you know, I mean, some might argue that we need, what did you say, a billion words of law or whatever the number was, you know, nowadays, because the world is just so much more complicated?
Philip K. Howard 13:59
Well, the world is somewhat more complicated. And certainly the role of government is bigger because the world has gotten more interdependent. So we entrust the people we love to the care people we don’t know, in nursing homes and daycare centers and schools, all kinds of things. So some, so there’s a role for government oversight where they didn’t use to be one. However, the world isn’t that much more complicated. And if you go back and look at the debates over the Constitution, there are some pretty subtle issues that they were discussing. And they concluded with the Constitution, which is barely 10 pages, that it would be much better, to have general principles and to let people argue about right and wrong. And they talked about that. That was explicitly part of our founding philosophy, that it would be better for a free society to have everybody focusing on the goals rather than rather than an instruction manual telling people exactly what unreasonable searches And seizures meant or the Necessary and Proper Clause of the Constitution on the, you know, the role of government. So our founders were not dealing in a simple world, they had their own complications. And, and they dealt with it in a way that was that allows humans to take responsibility. We’ve tried to create a system of law and government, where officials are just mindless mechanics to this huge legal machine. And the problem is, of course, is usually the machine doesn’t work.
Jason Hartman 15:35
It certainly doesn’t. He is there. I mean, you know, where should the reforms start? Should it start with reforming the profession of the practice of law? Some think what we need to do is is changed the way lawyers operate? Or do you know, Shakespeare? First thing we do is kill all the lawyers? And you are an attorney? Of course, is that where the reform starts? Or does it start in government? government? is just such a giant, slow moving, micro Raj, conflicting motivation monster? Or does it start in government with actual the laws on the books? Or do we start with the way the profession operates?
Philip K. Howard 16:16
Well, I think I think if I had to
Philip K. Howard 16:20
set a kind of a set of goals, the first goal would be to change the public management narrative, let’s, let’s don’t argue about right versus left, let’s argue about let’s talk about why the schools don’t work and why the health care system waste money. And you know, why nursing homes are so awful. And and and ask ourselves the basic question, who has responsibility? And the answer in, in all these questions, who’s responsible for the budget deficit is nobody, we’ve created a world in which literally has the rule of nobody, we’re, nobody’s responsible. So. So the next step, I think, is to, is to take area by area, we’re working on mine right now, which is infrastructure approvals. Or we could hire 2 million people in a couple of years, if we could get this done. Where you take something that’s now a decade long process, and you simplify it in following way, we, instead of just having people doing studies, with nobody really in charge, give an official probably an EPA the authority to decide when there’s been enough review, which is normally about nine years before they actually gets finished. And, and because there are a lot of projects that basically have no impact, you know, you just rebuilding a broken bridge or something, and let those projects keep going. Because today, they they can’t, so you, you go area by area, you come up with a proposal that’s radically simplified, mainly by giving somebody responsibility to make a decision, then you have a way of holding them accountable. And you begin to develop a kind of a movement, if you will, over to what’s needed, where you go area by area, to radically simplify government so that it’s back to a human scale, that humans can understand. Humans can deal with exceptions can be made. And government becomes back in, in our control today, governments in controller now by one of
Jason Hartman 18:27
my show, guests will have called this concept in this thing between the government, the public employee unions, and then the constituency, or the you know, which may be the vendors selling to the government who are profiting, you know, he called them iron triangles. And, and you can never break them because everybody’s motivation, you know, you know, of course, the government bureaucrats, they want to keep their jobs, they want to keep their pensions, you know, and they want to have their little tyrannical power trips, sometimes. And then they’re their vendors making money selling information systems to all these bureaucrats and selling supplies and you know, providing services and so forth. And, and then there are constituents that, you know, everybody’s just profiting or benefiting, in some way everywhere you look. And I mean, I don’t know if you can ever break those triangles, it may be the way it has to happen, sadly, is with a revolution.
Philip K. Howard 19:26
Well,
Philip K. Howard 19:28
well, first of all, that’s right, there is a triangle. So if you think of the way I look at modern democracy is it’s not people making decisions. It’s a giant blob. And it’s a giant blob of accumulated laws and regulations, mostly written by people who are dead. They wrote them and they just kind of sail along into infinity.
Jason Hartman 19:49
Right? It just got a comment on that before you go on. I mean, until just last September, with the JOBS Act, you’d look at a private placement memorandum for to invest in a deal The Securities Act of 1933. I mean, it’s the law, the slowest thing in the world to adapt.
Philip K. Howard 20:08
Right, right, exactly. So, so you have this, this, this blob, and in there all these people feeding off the blog, their special interest there lawyers are bureaucrats. And so it doesn’t work. It has all these unintended consequences. There’s not one legal, there’s not one government program that isn’t broken to some significant degree. But the solution isn’t to get rid of government, it’s not the Tea Party solution, in my view, it’s to it’s to have a mechanism in place where you go and as you would in a business to fix the poor. Okay, why is why is the Veterans Administration not working? So you’re going to fix it, it’s not rocket science is fix it. But But government doesn’t have any capacity for somebody to actually take responsibility and do that. And Congress doesn’t even have the idea that it should go back and fix all these old laws. It treats them like the 10 commandments, that it’s like the 10 million command, right? So don’t million commandments, I love that. So it just keeps on going. So what history shows is that change in a society almost never happens with small ball. It’s just not how it works. It happens. It happens in Big Gulps. And pressures build up decade after decade, and all of a sudden, you get the 1960s. Or you get the 1930s, or you get the Progressive Era, or you get the Civil War. And that’s going to happen here too. So it’s got to change. But the question is how to kind of change. And so what we’re trying to do a common good. And what I’m trying to do with this book, The rule of nobody is actually portray a vision of how a democracy could actually work and make decisions and not be paralyzed.
Jason Hartman 21:56
Yeah. Tell us about that. I mean, I you’ve alluded to it, for sure. But, you know, maybe just give us the big broad view, if you would.
Philip K. Howard 22:01
Well, if you take any. So I just mentioned the infrastructure project, you can take a process, where now nobody’s in charge for anybody wants to complain, can complain. And it’ll go on for an average of almost 10 years. For a relatively straightforward project. If you give an official the authority to say when there’s been enough review, then it can go forward. Immediately. I tell the story of the bay on bridge, which was a bridge that spans to Calvin call that a straight that goes from New York Harbor into Newark harbor route the ships go, and the bridge is 65 feet too low for the new generation of post Panamax ships. So it needs to get raised and they and the Port Authority, which on sunbreeze, thought they were going to have to tear down the bridge and replace it, it’s going to cost $4 billion. And this lifetime government employee came up with the idea that why don’t we just raise the roadway within the existing arch? And they did special tests? Sure enough, they could, it was going to save $3 billion, the same foundations the same right away everything right? It was just like a miracle. And guess what, four years later, they still didn’t have approval, analysis and litigation. Because they, because the review they did was only 5000 pages long. From sessions for a project with no environmental impact, and people are suing claiming they didn’t do enough of a study. That’s madness.
Jason Hartman 23:36
That’s crazy. Yeah, it’s see it’s,
Philip K. Howard 23:40
or I’ll give you another example Australia, like, like the US had terrible nursing homes, very bureaucratic, they had 1000 rules. Food must be stored not less than 19 centimeters above the floor, there must be point oh, nine recreational workers per person. There must be a trashcan and each, each bathroom. Yeah, it’s just one thing after another.
Jason Hartman 24:04
And those all sound good, but those aren’t
Philip K. Howard 24:08
perfectly. But when you have 1000 of them, right? Then what happens is people go through the day making sure those things are checked off, right? instead of actually focusing on the person and saying what does this resident need today? So Australia got rid of all their rules. And they replaced them with 31 general principles. Have a home like setting respect the dignity of the residence, stuff like that. Have it cleaned in the case, you know? Yeah, yeah. Yeah. All the all the experts scoff they said all these nursing home operators are going to get away with murder. Within one year of nursing homes were twice as good. And the reason they just you know, experts said he did. The reason is because people started to go into work, focusing on asking the right this question, what’s the right thing to do? Instead of just mindless bureaucratic widgets, you know, complying with these thousand rules. And it’s just, it’s transformed Australia’s nursing house.
Jason Hartman 25:09
Very interesting, very interesting. Well, let me just run an idea by you few, if you’ll indulge me for a moment, I just, you’re the perfect person to ask this. I have become so disillusioned and disappointed with government, that I just don’t believe in it, like so many Americans don’t believe in anymore. And for seemingly many good reasons. So I’m a libertarian on the political spectrum. And, you know, I’m just wondering if, you know, it’s sort of whenever I talk with someone about these issues, we all have, you know, a few things that we want, of course, when we go to a restaurant, we want our food to be safe, we don’t want to get sick, we don’t want to get hepatitis, because the guy didn’t wash his hands. We, you know, when we walk into a building, we don’t want the roof to fall on our head. So that’s the need for building codes and health codes. And, oh, you know, all of these laws, right? And your common sense approach sounds great. Conceptually, I don’t know how you do it, and how it comes out in practice, exactly. But it seems like a lot of this stuff could just be a simple law that says, look, the building has to be up to code. And we’re not going to send a government inspector out there to see that it’s up to code. And the restaurant has to do certain things to make sure the food is healthy. But we’re not going to send a government inspector out there to do it, we’re just going to make a law. And I know you’re thinking God, another law. Terrible idea. But the law is just going to be really simple. You have to do all these things. And you have to have insurance that ensures all of these things to the public. And to get that insurance policy, the insurance company that writes the policy will have to protect their interest and come in and inspect you and make sure you’re complying. So you sort of delegate this responsibility away from government to private enterprise, which the one thing I definitely do not like privatized is the prisons. I think that has turned into a disaster. Although conceptually, I liked that idea when I first heard of it many years ago, but I don’t think that one is right. Am I do I have a good or bad idea here? I really No,
Philip K. Howard 27:18
no, no, I actually think it’s an excellent idea. I think there are many areas of government oversight, where we’re, it’s important to put the obligation on the private sector that actually works with building codes. I mean, they’re, the professionals, architects and engineers and stuff, actually have to certify that the buildings and things are up to code. And that is a form of privatization. Because the not enough inspectors to go around and look at every, you know, every building project, I’ve always thought that in certain areas like pollution control, and others that, that you could actually have a new business line for accounting firms or consulting firms where, where they would actually go and they would themselves be certified as kind of regulatory experts. And they would go in and instead of the inspector would come in, you know, typically and give out tickets and stuff. But they would go to say, the pig farmer, and say, Look, you know, you’re probably out of line with best practices here, you’re allowing run off from your pig farm, we’re going to create data, here are the ways you need to fix it. And if you fix it, we can give you the certification that you need to give to the government. And so you see, you have a much more of a cooperative type attitude, rather than, you know, a harried overworked government inspector who just see something bad and, you know, in slaps a injunctive order, or, or on the other end of that spectrum, he’s he sees something bad takes a payoff and a bribe. Well, that too. Absolutely. And so and so you could end in government has become so intrusive. in certain areas of regulation, that it actually makes a lot of sense, I think to, to to privatized oversight, because the government just can’t get to it. The government can’t, doesn’t have nearly enough worker safety inspectors to look at, you know, all the workplaces in America, so people can do whatever they want. So, you know, I think that’s a very good idea. I think they’re, I think the whole system needs to get rebuilt. And, again, there’s not one program that is effective, maybe the FAA is effective. So you know, I’m sure you can find exceptions, but basically, by and large government is, is almost universally ineffective, and wasteful, and often and often counterproductive. Yeah,
Jason Hartman 29:55
I was I was listening to Peter Drucker speech. You know, the Great management expert, the leak rate management expert. And he was saying just over the weekend when I was listening to it that government it has been the last time government was effective was in the 50s. It since then it just nothing has worked to basically know.
Philip K. Howard 30:16
Peter Drucker is a is an important source for me in the rule of nobody in my new book, right? quoting a lot. Yeah, he’s incredibly wise. And one of the points he makes is this, it nothing happens unless a human makes it happen. Following a rule and the whole history of the universe never made anything good happens. You know, rules are there as a framework to prevent bad things from happening, but they don’t accomplish anything. Only people accomplish something. And so if you want government to work, you’ve got to give everyone the freedom to try to make it work. You don’t just go around with your noses and rulebooks
Jason Hartman 30:57
Yeah, no question about it, no question about it. Well, give out your websites. I mean, you’ve got one for your self, I think as an author, and then also one for your organization.
Philip K. Howard 31:07
Well, one of the you know, we’re we’re hoping to start a movement here. And so we’re working with some of our we have a great board people like Al Simpson and Bill Bradley and people like that. And so we’re looking for stories, stories from citizens of frustration with idiotic bureaucracy and such. So they can send the stories to stories at common good. org. And they can learn more about common good at common good. org. And, and, you know, for the rule of No, and they can get to me through my, my name is Philip K. Howard, calm, like, you know, you can but, but the book is getting a lot of good reception, many good reviews. And I think people, people seem to be responding to the rule of nobody and, and coming up with ideas about how to fix it as you have to. So thank you. And I hope you’ll be creative and come up with some more ideas and let us know what they are. So we can enlist in su in the cars.
Jason Hartman 32:07
Philip, if you have if you’re collecting stories of idiotic government, I hope you have a lot of space on your server.
Philip K. Howard 32:15
Exactly.
Jason Hartman 32:16
There are a lot of people with a lot of stories out there. So keep up the good work. It was great having you on the show and talking about some of this stuff. That’s Philip K. Howard, Philip K. howard.com, or common good.org. And the book, of course, is available on Amazon and all the usual places. Very, very interesting. Any closing thought, Philip, just real quick. No, thanks very much. All right. Thanks for being on the show.
Philip K. Howard 32:39
Thanks, Jason.
Jason Hartman 32:43
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