The Florida Bar

Florida Bar Journal

Try Common Sense: Replacing the Failed Ideologies of Right and Left

Book Reviews

by Philip K. Howard

It is exceedingly and frustratingly difficult in the United States today to effectively, much less efficiently, accomplish productive goals affecting the public good (such as building infrastructure, administering a school system, or assuring decent care for nursing home residents). This slim but meaty new book ascribes much of the blame for our societal gridlock on the dysfunctional legal environment that engulfs modern American culture.

Author Philip K. Howard is a senior partner with Covington and Burling, and the 2002 founder of Common Good, a nonprofit national coalition “dedicated to restoring common sense to America.” Try Common Sense builds on and expands his earlier four book-length manifestos, as well as his 2010 TED Talk and various reports and articles, for a dramatically different and better approach to regulation than the one that now prevents so much progressive activity.

In a nutshell, the author contends that the proper social role of law is to set policy goals and establish practical governing principles, not to try to prospectively and meticulously specify “correct” implementation dictates for every conceivable future scenario. In Howard’s preferred orientation, people should be judged, and held responsible, based on their good-faith efforts and tangible results rather than their legalistic compliance with precise regulatory requirements. Thus, Howard urges quite a departure from the contemporary legal culture that he describes as a worldview predicated on a fear of decisive decisionmaking and action-taking borne from a strong mutual distrust and aversion to the risk of personal responsibility infecting just about all of us (“Don’t do anything and you can’t get into trouble.”).

Exactly because he rejects the currently dominant idea of law qua prolix instruction manual for everyday interactive life, the author does not present any sort of model act with which legislators can tinker tomorrow to begin addressing the legal defensiveness mentality that, over the last half-century, has come to incrementally paralyze both public servants and private entrepreneurs in this country. Instead, this book offers a broad conceptual vision likely to appeal less to policy wonks than to tomorrow’s statesmen interested in promoting the kind of governing philosophy integral to the design and practical functioning of a good (that is, characterized by and imbued with common sense) society.

The changes Howard propounds are equally idealistic and pragmatic. For him, “The test of the law is how it works” (p. 82). The suggested regulatory changes are also controversial and will be vigorously opposed by the vast array of special interests (especially, in Howard’s estimation, government employee unions and a civil service system that has strayed badly from its original merit and fairness values) whose very existence and prosperity would be threatened by a return to common sense in the public sphere.

If the description of Howard’s proposal synopsized here sounds intriguing but too amorphous, please read the whole volume. The author provides a much fuller, engaging, and persuasive explication of his dream than my short review can convey.

Marshall B. Kapp of Tallahassee is a member of The Florida Bar.