Via The Space Collective -

Very interesting OpEd.  Read it.  Debate it.  Let me know what you think.

Philip K. Howard is a lawyer and chair of Commongood.org.

Via The Wall Street Journal -

How Modern Law Makes Us Powerless

The real barrier to Barack Obama’s ‘responsibility’ era.

By PHILIP K. HOWARD

Calling for a “new era of responsibility” in his inaugural address, President Barack Obama reminded us that there are no limits to “what free men and women can achieve.” Indeed. America achieved greatness as the can-do society. This is, after all, the country of Thomas Paine and barn raisings, of Grange halls and Google. Other countries shared, at least in part, our political freedoms, but America had something different — a belief in the power of each individual. President Obama’s clarion call of self-determination — “Yes We Can” — hearkens back to the core of our culture.

But there’s a threshold problem for our new president. Americans don’t feel free to reach inside themselves and make a difference. The growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices. All around us are warnings and legal risks. The modern credo is not “Yes We Can” but “No You Can’t.” Our sense of powerlessness is pervasive. Those who deal with the public are the most discouraged. Most doctors say they wouldn’t advise their children to go into medicine. Government service is seen as a bureaucratic morass, not a noble calling. Make a difference? You can’t even show basic human kindness for fear of legal action. Teachers across America are instructed never to put an arm around a crying child.

The idea of freedom as personal power got pushed aside in recent decades by a new idea of freedom — where the focus is on the rights of whoever might disagree. Daily life in America has been transformed. Ordinary choices — by teachers, doctors, officials, managers, even volunteers — are paralyzed by legal self-consciousness. Did you check the rules? Who will be responsible if there’s an accident? A pediatrician in North Carolina noted that “I don’t deal with patients the same way any more. You wouldn’t want to say something off the cuff that might be used against you.”

Here we stand, facing the worst economy since the Great Depression, and Americans no longer feel free to do anything about it. We have lost the idea, at every level of social life, that people can grab hold of a problem and fix it. Defensiveness has swept across the country like a cold wave. We have become a culture of rule followers, trained to frame every solution in terms of existing law or possible legal risk. The person of responsibility is replaced by the person of caution. When in doubt, don’t.

All this law, we’re told, is just the price of making sure society is in working order. But society is not working. Disorder disrupts learning all day long in many public schools — the result in part, studies by NYU Professor Richard Arum found, of the rise of student rights. Health care is like a nervous breakdown in slow motion. Costs are out of control, yet the incentive for doctors is to order whatever tests the insurance will pay for. Taking risks is no longer the badge of courage, but reason enough to get sued. There’s an epidemic of child obesity, but kids aren’t allowed to take the normal risks of childhood. Broward County, Fla., has even banned running at recess.

The flaw, and the cure, lie in our conception of freedom. We think of freedom as political freedom. We’re certainly free to live and work where we want, and to pull the lever in the ballot box. But freedom should also include the power of personal conviction and the authority to use your common sense. Analyzing the American character, Alexis de Tocqueville, considered “freedom less necessary in great things than in little ones. . . . Subjection in minor affairs does not drive men to resistance, but it crosses them at every turn, till they are led to sacrifice their own will. Thus their spirit is gradually broken and their character enervated.”

This is not an ideological point. Freedom in daily choices is essential for practical reasons — necessary for government officials and judges as well as for teachers, doctors and entrepreneurs. The new legal order doesn’t honor the individuality of human accomplishment. People accomplish things by focusing on the goal, and letting their instincts, mainly subconscious, try to get them there. “Amazingly few people,” management guru Peter Drucker observed, “know how they get things done.” Most things happen, the philosopher Michael Polanyi wrote, through “the usual process of trial and error by which we feel our way to success.” Thomas Edison put it this way: “Nothing that’s any good works by itself. You got to make the damn thing work.”

Modern law pulls the rug out from under all those human powers and substitutes instead a debilitating self-consciousness. Teachers lose their authority, Prof. Arum found, because the overhang of law causes “hesitation, doubt and weakening of conviction.” Skyrocketing health-care costs are impossible to contain as long as doctors go through the day thinking about how they will defend themselves if a sick person sues.

The overlay of law on daily choices destroys the human instinct needed to get things done. Bureaucracy can’t teach. Rules don’t make things happen. Accomplishment is personal. Anyone who has felt the pride of a job well done knows this.

How do we restore Americans’ freedom in daily choices? Freedom is notoriously malleable towards self-interest. “We all declare for liberty,” Abraham Lincoln observed, “but in using the same word we do not all mean the same thing.”

Freedom, however, is not just a shoving match. Freedom has a formal structure. It has two components:

1) Law sets boundaries that proscribe what we must do or can’t do — you must not steal, you must pay taxes.

2) Those same legal boundaries protect an open field of free choice in all other matters.

The forgotten idea is the second component — that law must affirmatively define an area free from legal interference. Law must provide “frontiers, not artificially drawn,” as philosopher Isaiah Berlin put it, “within which men should be inviolable.”

This idea has been lost to our age. When advancing the cause of freedom, law today is all proscription and no protection. There are no boundaries, just a moving mudbank comprised of accumulating bureaucracy and whatever claims people unilaterally choose to assert. People wade through law all day long. Any disagreement in the workplace, any accident, any incidental touching of a child, any sick person who gets sicker, any bad grade in school — you name it. Law has poured into daily life.

The solution is not just to start paring back all the law — that would take 10 lifetimes, like trying to prune the jungle. We need to abandon the idea that freedom is a legal maze, where each daily choice is like picking the right answer on a multiple-choice test. We need to set a new goal for law — to define an open area of free choice. This requires judges and legislatures to affirmatively assert social norms of what’s reasonable and what’s not. “The first requirement of a sound body of law,” Justice Oliver Wendell Holmes Jr. wrote, “is that it should correspond with the actual feelings and demands of the community.”

The profile of authority structures needed to defend daily freedoms is not hard to imagine. Judges would aspire to keep lawsuits reasonable, understanding that what people sue for ends up defining the boundaries of free interaction. Schools would be run by the instincts and values of the humans in charge — not by bureaucratic micromanagement — and be held accountable for how they do. Government officials would have flexibility to meet public goals, also with accountability. Public choices would aspire to balance for the common good, not, generally, to appease someone’s rights.

Reviving the can-do spirit that made America great requires a legal overhaul of historic dimension. We must scrape away decades of accumulated legal sediment and replace it with coherent legal goals and authority mechanisms, designed to affirmatively protect individual freedom in daily choices. “A little rebellion now and then is a good thing,” Thomas Jefferson wrote to James Madison, “and as necessary in the political world as storms are in the physical . . . .” The goal is not to change our public goals. The goal is make it possible for free citizens to achieve them.

Mr. Howard, a lawyer, is chair of Common Good (www.commongood.org), and author of the new book “Life Without Lawyers,” published this month by W.W. Norton & Co.

Via The Wall Street Journal -

By STEPHEN MOORE

Some years ago when I worked at the libertarian Cato Institute, we used to label any new hire who had not yet read “Atlas Shrugged” a “virgin.” Being conversant in Ayn Rand’s classic novel about the economic carnage caused by big government run amok was practically a job requirement. If only “Atlas” were required reading for every member of Congress and political appointee in the Obama administration. I’m confident that we’d get out of the current financial mess a lot faster.

Many of us who know Rand’s work have noticed that with each passing week, and with each successive bailout plan and economic-stimulus scheme out of Washington, our current politicians are committing the very acts of economic lunacy that “Atlas Shrugged” parodied in 1957, when this 1,000-page novel was first published and became an instant hit.

Rand, who had come to America from Soviet Russia with striking insights into totalitarianism and the destructiveness of socialism, was already a celebrity. The left, naturally, hated her. But as recently as 1991, a survey by the Library of Congress and the Book of the Month Club found that readers rated “Atlas” as the second-most influential book in their lives, behind only the Bible.

For the uninitiated, the moral of the story is simply this: Politicians invariably respond to crises — that in most cases they themselves created — by spawning new government programs, laws and regulations. These, in turn, generate more havoc and poverty, which inspires the politicians to create more programs . . . and the downward spiral repeats itself until the productive sectors of the economy collapse under the collective weight of taxes and other burdens imposed in the name of fairness, equality and do-goodism.

In the book, these relentless wealth redistributionists and their programs are disparaged as “the looters and their laws.” Every new act of government futility and stupidity carries with it a benevolent-sounding title. These include the “Anti-Greed Act” to redistribute income (sounds like Charlie Rangel’s promises soak-the-rich tax bill) and the “Equalization of Opportunity Act” to prevent people from starting more than one business (to give other people a chance). My personal favorite, the “Anti Dog-Eat-Dog Act,” aims to restrict cut-throat competition between firms and thus slow the wave of business bankruptcies. Why didn’t Hank Paulson think of that?

These acts and edicts sound farcical, yes, but no more so than the actual events in Washington, circa 2008. We already have been served up the $700 billion “Emergency Economic Stabilization Act” and the “Auto Industry Financing and Restructuring Act.” Now that Barack Obama is in town, he will soon sign into law with great urgency the “American Recovery and Reinvestment Plan.” This latest Hail Mary pass will increase the federal budget (which has already expanded by $1.5 trillion in eight years under George Bush) by an additional $1 trillion — in roughly his first 100 days in office.

The current economic strategy is right out of “Atlas Shrugged”: The more incompetent you are in business, the more handouts the politicians will bestow on you. That’s the justification for the $2 trillion of subsidies doled out already to keep afloat distressed insurance companies, banks, Wall Street investment houses, and auto companies — while standing next in line for their share of the booty are real-estate developers, the steel industry, chemical companies, airlines, ethanol producers, construction firms and even catfish farmers. With each successive bailout to “calm the markets,” another trillion of national wealth is subsequently lost. Yet, as “Atlas” grimly foretold, we now treat the incompetent who wreck their companies as victims, while those resourceful business owners who manage to make a profit are portrayed as recipients of illegitimate “windfalls.”

When Rand was writing in the 1950s, one of the pillars of American industrial might was the railroads. In her novel the railroad owner, Dagny Taggart, an enterprising industrialist, has a FedEx-like vision for expansion and first-rate service by rail. But she is continuously badgered, cajoled, taxed, ruled and regulated — always in the public interest — into bankruptcy. Sound far-fetched? On the day I sat down to write this ode to “Atlas,” a Wall Street Journal headline blared: “Rail Shippers Ask Congress to Regulate Freight Prices.”

In one chapter of the book, an entrepreneur invents a new miracle metal — stronger but lighter than steel. The government immediately appropriates the invention in “the public good.” The politicians demand that the metal inventor come to Washington and sign over ownership of his invention or lose everything.

The scene is eerily similar to an event late last year when six bank presidents were summoned by Treasury Secretary Hank Paulson to Washington, and then shuttled into a conference room and told, in effect, that they could not leave until they collectively signed a document handing over percentages of their future profits to the government. The Treasury folks insisted that this shakedown, too, was all in “the public interest.”

Ultimately, “Atlas Shrugged” is a celebration of the entrepreneur, the risk taker and the cultivator of wealth through human intellect. Critics dismissed the novel as simple-minded, and even some of Rand’s political admirers complained that she lacked compassion. Yet one pertinent warning resounds throughout the book: When profits and wealth and creativity are denigrated in society, they start to disappear — leaving everyone the poorer.

One memorable moment in “Atlas” occurs near the very end, when the economy has been rendered comatose by all the great economic minds in Washington. Finally, and out of desperation, the politicians come to the heroic businessman John Galt (who has resisted their assault on capitalism) and beg him to help them get the economy back on track. The discussion sounds much like what would happen today:

Galt: “You want me to be Economic Dictator?”

Mr. Thompson: “Yes!”

“And you’ll obey any order I give?”

“Implicitly!”

“Then start by abolishing all income taxes.”

“Oh no!” screamed Mr. Thompson, leaping to his feet. “We couldn’t do that . . . How would we pay government employees?”

“Fire your government employees.”

“Oh, no!”

Abolishing the income tax. Now that really would be a genuine economic stimulus. But Mr. Obama and the Democrats in Washington want to do the opposite: to raise the income tax “for purposes of fairness” as Barack Obama puts it.

David Kelley, the president of the Atlas Society, which is dedicated to promoting Rand’s ideas, explains that “the older the book gets, the more timely its message.” He tells me that there are plans to make “Atlas Shrugged” into a major motion picture — it is the only classic novel of recent decades that was never made into a movie. “We don’t need to make a movie out of the book,” Mr. Kelley jokes. “We are living it right now.”

Mr. Moore is senior economics writer for The Wall Street Journal editorial page.

Both of these quotes were lifted from Naomi Klein’s “Shock Doctrine, The Rise of Disaster Capitalism”.

“Only a crisis - actual or perceived - produces real change.  When that crisis occurs, that actions that are taken depend on the ideas that are lying around.  That, I believe, is our basic function: to develop alternatives to existing policies, to keep them alive and available until the politically impossible becomes politically inevitable”

- Milton Friedman -

“An armed conflict between nations horrifies us.  But the economic war is no better that an armed conflict.  This is like a surgical operation.  An economic war is prolonged torture.  And its ravages are no less terrible than those depicted in the literature on war properly so called.  We think nothing of the other because we are used to its deadly effects… The movement against war is sound.  I pray for its success.  But I cannot help the gnawing fear that the movement will fail if it does not touch the root of all evil-human greed”

- M.K Ghandi -