I once took a public sector job where I had oversight (though not formal supervisory responsibilities) over several personnel who had more years experience than I had. One such employee was approaching retirement. Not herself a manager, she nevertheless thought of herself as the leader of her fellow employees. She would take credit for others’ ideas, give directives I would later reverse, and was entirely impervious, even hostile, to professional feedback. Everyone despised her.
As far as our office went, the woman was dead weight. And though my managers (and hers) knew she was useless, and despite more than two years of my petitioning leadership to remove her, the woman kept her job. It would be, my bosses told me, a lot of work to fire this woman, and she’d be gone soon anyway. Though they never said as much, my bosses feared her—she presumably knew where a few bodies were buried and might have sued for wrongful termination. Later, after I left that job, I heard she had retired with full benefits.
I imagine I’m not the only person with a professional story like this, defined by aggravating inertia. “Powerlessness has become a defining fixture of modern society,” writes Philip K. Howard in his new book, Everyday Freedom: Designing the Framework for a Flourishing Society. “Americans at all levels of responsibility feel powerless to do what they think is needed.” Whether we are talking about teachers, medical professionals, government officials, or businessmen, all have been restrained by legal constraints, real or feared. There’s a reason for that, Howard argues, and it has to do with a significant legal (and subsequently cultural) transformation that happened in the United States beginning with the 1960s “rights revolution.”
According to this narrative, America’s legal framework was rebuilt to defeat the social evils of racism and sexism and promote equality through the exercise of three new legal mechanisms intended to shield people from those in authority. The first of these were prescriptive rulebooks, which dictate a single correct way to do things, ensuring safety and fairness and reducing the risk of human fallibility. Brookings scholar Herbert Kaufman championed this approach: “Only precise, specific guidelines can assure common treatment of like cases.”
The second was the creation of formal procedures to force people, especially government officials, to provide evidence for the correctness of their decisions. The “legal process” movement, promoted by law professors such as Henry Hart and Albert Sachs, urged “an agreeable procedure for getting acceptable answers.” This is the reason why, for example, procuring permits for infrastructure modernization or disciplining public employees in the 21st century has become so onerous, often requiring years to navigate byzantine bureaucracy.
The third was a new litmus test of individual rights, which empowered individuals to file lawsuits for anything portrayed as an adverse life event. Ordinary accidents transformed into “calamities” that provoked outrage and demanded recompense, encouraged by a system prejudiced in favor of tort litigation. According to a recent survey, the vast majority of physicians reported practicing defensive medicine, or “[altering] clinical behavior because of the threat of malpractice liability,” a phenomenon that wastes about $200 billion every year.
Howard notes that one casualty of these developments is the harm to the common good—a nation obsessively on guard against the violation of rights fosters a more distrustful society in which citizens view each other as adversaries. That certainly seems in keeping with Tocqueville’s assessment in Democracy in America:
It is especially dangerous to enslave men in the minor details of life. For my own part, I should be inclined to think freedom less necessary in great things than in little ones, if it were possible to be secure of the one without possessing the other. Subjection in minor affairs breaks out every day and is felt by the whole community indiscriminately. It does not drive men to resistance, but it crosses them at every turn, till they are led to surrender the exercise of their own will. Thus their spirit is gradually broken and their character enervated.
As Tocqueville elsewhere warned, another result of this new legal paradigm is the creation of new anxieties and risks. Some manifestations of this are employers fearful of giving honest feedback, or institutions diverting massive chunks of their budgets to address legal compliance.
Thus we have a system that is patently confusing and disempowering. Howard cites a study of Illinois nursing home regulations that found that inspectors typically only enforced about 10% of rules. Alternatively, regulations intended to help the environment do the opposite, because they prolong bottlenecks and double the cost of projects. And more than 99% of federal employees are rated “fully successful.” (As a manager friend of mine in federal service explains, rather than discipline bad employees, supervisors play “pass the trash.”)
Much academic research confirms the problems here. Sociological research on management and business overwhelmingly recognizes that human initiative and creativity, typically by those with deep expertise and the freedom to experiment, rather than strict adherence to bureaucratic processes, are the best means of achieving success. Intuition, not regulatory frameworks, is the origin of the best professional decisions. And studies have shown, ironically, that trying too hard to purge bias from workforces or classrooms paradoxically reaffirms or causes more bias.
In response to our enervating regulatory system, Howard offers a legal structure with three key components: (1) laws should define boundaries that protect against unreasonable acts and encourage an open field of freedom; (2) those legal boundaries should be marked by broad principles, rather than detailed regulations that dictate correct choices; and (3) law should ensure clear lines of authority to interpret and enforce those legal principles. In Howard’s favor is that the U.S. Constitution consists of principles rather than precise rules. More broadly, he urges a re-empowerment of Americans in their everyday choices, what he calls “everyday freedom” to act in a manner they assess to be appropriate, “constrained only by the boundaries of law and by norms set by the employer or other institution.”
These principles are all well and good and could perhaps, depending on how they are articulated, enjoy bipartisanship support. Yet practically speaking, what can be done? Howard cites as examples of his approach in action “Operation Warp Speed,” the multibillion-dollar research project that discovered COVID vaccines in six months, and Pennsylvania governor Josh Shapiro’s 2023 decision to suspend regulations that would prevent or hinder the reopening of a section of I-95 that had collapsed, enabling the highway to process traffic again after just 12 days instead of months.
“Judges, officials, school principals, supervisors, and others with institutional authority must assert and enforce values of what’s right and reasonable,” writes Howard. But whose values? In answer to that question, Howard offers an appeal to moderate, widely accepted norms, which is perhaps better than current practice but also seems too nebulous a criterion to effectuate the dramatic changes the author believes necessary.
Howard also recommends a reinvigoration of mutual trust, the “lubricant of social interaction,” in the face of a society in which “many Americans no longer believe in America.” Yet in this respect, our increasing societal diversity is an impediment to increasing mutual trust, for the more diverse a society is, and the less that society has a shared understanding of a common history and what constitutes the good life—what we might call its mythos and telos—the harder it is to maintain that social trust, and the more isolated and partisan we become, as Tim Carney has well cataloged in Alienated America. To wit, our culture no longer even agrees as to how to define male and female.
Howard encourages Americans to limit or abandon social media and its toxic tendency to reinforce loneliness and hyper-partisanship. (A great idea, but easier said than done, given social media’s remarkably lucrative powers.) He recommends the reinforcement of “mediating institutions” between citizens and the government, adding that “wherever practical, government should delegate services and provide resources to credible local groups, and provide block grants conditioned on performance.” This includes religious organizations, such as churches and synagogues, since the benefits of local ownership outweigh the potential threat posed by religious communities imposing their beliefs on some citizens. (Though also a great idea, this also seems implausible, given the unprecedented rise of the religious unaffiliated.)
Howard believes “the only practical mechanism for designing new frameworks is for Congress to delegate the design of structures, area by area, to independent recodification commissions.” Yet Congress seems far too weak and self-serving to do this, evidenced by the GOP’s recent unwillingness to negotiate on the border crisis because it’s an election year.
In sum, Howard has done an excellent job diagnosing the problem and offering a paradigmatic solution to our maddening distemper. Yet many of his suggestions, no matter how excellent, seem improbable given our current political climate. (Perhaps one exception is his recommendation, borrowed from the Danes, to adopt a “flexicurity” program in which terminated employees collect up to two years of income support as a means to address the problem of retaining bad employees out of fear.) “The impetus for big change must be overwhelming public demand,” writes Howard. Frustratingly, and certainly no fault of Howard’s, it seems we are still far from reaching that critical threshold.
