Yesterday I finished The Death of Common Sense by Philip K. Howard.

Subtitled How Law is Suffocating America, it would be more accurate to say How Changes in Philosophy of Law is Suffocating America. Howard does a good job providing lots of examples how the law has become less useful, more restrictive and counter-productive. How goes through three areas where he sees this.

The first is the growth of statutory law over common law. Statutory law specifies not only the general principles or rules, but also lays out the specifics of exactly how the law is to be interpreted and implemented, sometimes in grotesque detail. This over-specification is intended to ensure the exact results intended by the lawmakers without any judgment or flexibility and produces laws that become ends in themselves.

Similarly, his second main topic details how process has overtaken progress. In particular, processes that are intended to ensure fairness and lack of bias instead create forums for endless discussion, since there is no alternative once someone asks to be heard.

His third main topic details the growth of what I will call active rights. Starting with the important civil rights laws of the 1960s, some of the same ideas were extended to cover the disabled, etc. moving from the removal of barriers for some to the active support of others. Howard does a nice job in this section of pointing out that real rights are actually defensive in nature - a shield against the law/government, while these new "rights" necessitate action by others in order to support others. As such, they are not actually rights but are instead demands.

An interesting book. I don't know if his proscriptions at the end of the book are the correct fixes, since they don't focus on the philosophical problems that led to the problems, but the problems themselves are nicely delineated. One quibble - the book could have used in line footnotes to better source it's data, rather than just using end notes.