Book Review: The Death of Common Sense: How Law is Suffocating America
I recently had the chance to read Philip Howard’s 1996 book The Death of Common Sense: How the Law is Suffocating America. It is a short book, only 213 pages. The writing style is very engaging: the lawyer-author uses a minimum of legalese and masterfully blends news stories, academic research and logical analysis in support of his thesis.
This book makes a compelling argument that government regulates society in an arbitrary and oppressive manner. The author argues that legal principles such as due process and individual rights have been too broadly extended into government activities such as procuring goods and services from contractors and providing public education to children. In these cases, the author argues, modern administrative laws intended to be fair and prevent fraud, actually fail to serve those goals and harm society.
This is not a book about the “litigation explosion” in America. Despite the subtitle, it is not about lawsuits so such as the regulatory process and how the government acts (or fails to act).
I know this book has been generally well received and widely read. I believe its relates significant, important truths about modern government in a compelling manner. I do, however, have two criticisms. First, the book does a poor job citing references. While it contains a bibliography, it does not include footnotes that would allow a reader to verify the author’s claims or do further reading an a particular incident or example. The lack of proper citation greatly undermines the practical utility of the book in support of the cause it suggests. Second, Howard offers few practical solutions to the problem he outlines. He advocates common sense, individual responsibility, and common law but his concluding chapter is vague.
