The Death of Common Sense: How Law Is Suffocating America.

"America is drowning in law, legality, bureaucratic process. Abandoning our common sense and individual sense of responsibility, we live in terror of the law, in awe of procedure, at war with one another." So says Philip Howard in The Death of Common Sense: How Law is Suffocating America.

He presents the historical underpinnings of his argument in a section of the book titled "How Law Replaces Humanity." According to the author, tension between legal certainty and life's complexity was a primary concern to those who built our legal system. It resulted in the Constitution, which is a model of flexible law that has evolved with changing times and unforeseen circumstances.

What is known as "common law," which we inherited from England, is a synthesis of general standards derived from countless court decisions. The most important standard of the common law involves asking how a reasonable person would act in a particular situation. Nineteenth century legal scholars felt the combination of the Constitution and the common law would provide a "government of law, not of man."

In 1881, Oliver Wendell Holmes Jr., then a Harvard law professor, suggested that law was not certain but dependent on how judge and jury see the facts: "General propositions do not decide contract cases." This idea produced various legal reform movements to codify the law in order to provide "legal certainty." Statutes began to replace the common law in importance by the turn of the century. With the New Deal, statutory laws began to dominate the legal scene, providing job relief, welfare programs, and various regulatory programs.

Lawmaking momentum surged again in the 1960s, providing social programs such as Medicare, oversight in areas like worker safety, and environmental regulations. At the same time the words of law expanded. The Federal Register, a daily report of new and proposed regulations, increased from 15,000 pages in the final year of the Kennedy administration to over 70,000 pages in the last year of the Bush administration. As government took on an expanded role, legal draftsmen seemed to assume that law should be modernized as well. In the age of NASA, law would be made more scientific.

OSHA (Office of Safety and Heath Administration) at one point had 140 regulations on wooden ladders, including one specifying the grain of wood. This trend to legal detail is not confined to government. Business agreements in the United States now run to several hundred pages of single-spaced typing as the parties try to contemplate and negotiate every eventuality. In Switzerland, the same agreements are documented in ten to twenty pages.

Howard closes his historical analysis by stating, "To most experts, the highest art of American lawmaking is precision. Only with precision can law achieve a scientific certainty. By the crafting of words, lawmakers will anticipate every situation, every exception. With obligations set forth precisely, everyone will know where they stand."

It seems to me that the rigidities contained in the above quotation illustrate that legal reasoning has strayed far from common sense. Perhaps if general semantics was added to the law school curriculum it could loosen up some of this legal intransigence. That means teaching every student, on day one, that "The word is not the thing, the map is not the territory."