Reason Podcast

Try Common Sense and Dump Old Right-Left Ideologies, Says Philip K. Howard in New Book: Podcast

He also offers up concrete proposals not just to reform government but to route around it and get on with our lives already.

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Philip K Howard burst on the scene over 20 years ago with his best-selling book, The Death of Common Sense: How Law Is Suffocating America, which argued that out-of-control lawsuits and and rules and regulations were choking off vitality, innovation, and common decency. In 2002, he founded Common Good, a nonprofit whose credo is "simplify government, put humans back in charge, and cut mindless red tape." In 2014, I interviewed Howard about his book The Rule of Nobody.

A lawyer by training and profession, Howard's new book is Try Common Sense: Replacing Failed Ideologies of Left and Right. I spoke with him about how Americans might route around the federal government and get on with their lives.

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Photo Credit: Common Good

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49 responses to “Try Common Sense and Dump Old Right-Left Ideologies, Says Philip K. Howard in New Book: Podcast

  1. You mean “common sense,” as in how building a wall all along our Southern border will stop illegals from ruining this once great nation?

    Sounds good to me.

  2. You mean “common sense” as in how no one really needs more than 3 rounds for their firearm?

    1. Ah, a fellow duck hunter.

  3. failed ideologies of left and right yes.

  4. Loser pays and victim prosecution would go a long way towards correcting the legal system.

    1. So I recall a gent brought a patent infringement suit against Sony over some aspect of a display. One thing that struck me is that the packed court room seemed unusually well dressed.

      Every single available seat was one of Sony’s lawyers.

      So the gent should have to pay for all the lawyers Sony keeps on staff should he lose for asking for a judgement?

      Yeah, that makes sense.

      1. First of all, loser pays doesn’t mean that the respondent can “stack” his legal team so the complainant, if he loses, has to pay for all of them.

        BTW: Almost every other western “democracy” (and Alaska for that matter) uses “loser pays”.

        1. So what then, you are putting limits on how much can be spent on defense? Why not just limit how much can be spent on a court proceeding then?

          And how much of loser pays should be required in the Sony example? 75%? 50%? As much as the guy who brought the suit?

          Pointing out every other western democracy is equivalent to saying nearly all of them are heavily taxed welfare states… so we should do it too!

          The US was under English Rule in the early days of its history, and changed to American rule to address certain corruptions.

          Now you are arguing to change it back without addressing the problems that caused the change in the first place.

          Yeah, that makes sense.

          1. “The US was under English Rule in the early days of its history, and changed to American rule to address certain corruptions.
            Now you are arguing to change it back without addressing the problems that caused the change in the first place.
            Yeah, that makes sense.”

            If you want to be taken seriously, try an honest argument.
            ‘Argument by innuendo’ gets you a rep real quickly…

            1. There’s already a linked to discussion below that gives an outline of the history, as well as other resources for those that have mastered the mystery of the search engine.

              You’ll excuse me if I try not to summarize something as complex as the change from English Rule to what we have now in what is sure to be a half-assed and haphazard way (I am in no sense a legal historian).

              Likewise, you could try reading. Argument from ignorance is a poor look as well.

              1. report spam

                Qsl|1.16.19 @ 8:55PM|#
                “You’ll excuse me if I try not to summarize something as complex as the change from English Rule to what we have now in what is sure to be a half-assed and haphazard way (I am in no sense a legal historian).”
                No, neither I nor anyone else here will excuse you for making an argument from ‘claimed’ authority. Make the argument, or STFU.

                “Argument from ignorance is a poor look as well.”
                As we’ve noticed since you showed up.

      2. You think our current system works? You think stacking the deck doesn’t happen now?

        Good grief. Get a grip. You can stack expenses all sorts of ways, and almost all are fraud. It’s not limited to hiring too many lawyers.

        Get a grip.

        1. Thank you for conclusively arguing why loser pays is a bad idea.

          1. “Thank you for conclusively arguing why loser pays is a bad idea.”

            Oh, no! Thank *you* for the non-sequitur.

            1. Part of the reason for the move from English Rule was that lawyers would pad their costs or ask for contingency fees in order to gain higher amounts in loser pay costs.

              You know, as detailed in the discussion below you supposedly read.

              1. “Part of the reason for the move from English Rule was that lawyers would pad their costs or ask for contingency fees in order to gain higher amounts in loser pay costs.”
                OK. So?
                Plenty of people game the opposite, so since you’re playing ‘i make the claim, therefore I’m right’, you’ve just lost.
                I made the most recent claim.

                “You know, as detailed in the discussion below you supposedly read.”
                You know, linking a ‘discussion’ of that length simply shows you have no or a weak argument. ‘Here. Look through this. Some of these people agree with me.’
                Grow up, or shut up

                1. My apologies your reading and thinking is only as substantial as a soundbite.

                  The origin of the so-called American rule lies in the transformation of the legal profession in the Age of Jackson. Lawyers in the first half of the nineteenth century started making side-deals with their clients for fees greater than the court-regulated fees. Some clients were willing to make these deals to get better representation; others no doubt felt they had little choice in the matter. But either way, side deals started getting struck. And some of these fees were contingent on a successful outcome?the now familiar contingency fee.

                  Here’s the key part: Courts were willing to uphold these side deals, including the contingent fees. But courts were not willing to treat them as part of the costs that losers paid to winners at the end of a case

                  – John Fabian Witt, Professor of Law Yale Law School

                  Are you literate enough to verify that part is actually there? Do you need help?

                  1. Qsl|1.16.19 @ 9:48PM|#
                    “My apologies your reading and thinking is only as substantial as a soundbite.”
                    I offer no apologies for pointing out that you’re a lying asshole.

                    “The origin of the so-called American rule lies in the transformation of the legal profession in the Age of Jackson. Lawyers in the first half of the nineteenth century started making side-deals with their clients for fees greater than the court-regulated fees. Some clients were willing to make these deals to get better representation; others no doubt felt they had little choice in the matter. But either way, side deals started getting struck. And some of these fees were contingent on a successful outcome?the now familiar contingency fee.
                    Here’s the key part: Courts were willing to uphold these side deals, including the contingent fees. But courts were not willing to treat them as part of the costs that losers paid to winners at the end of a case
                    – John Fabian Witt, Professor of Law Yale Law School”
                    Yes, I read that as *one* of the opinions from a discussion *you* chose in the hopes of supporting your argument.

                    *Are you literate enough to verify that part is actually there? Do you need help?*
                    Are you asshole enough to dig a deeper hole for yourself?

      3. And for those playing at home, a round-table discussion of loser pays that informs a goodish portion as to why I think it is probably less a panacea than its proponents make it out to be.

        Added bonus: experts in their field discussing a matter in their wheelhouse, which is going to be a completely alien experience to that offered here.

        1. “Added bonus: experts in their field discussing a matter in their wheelhouse, which is going to be a completely alien experience to that offered here.”

          Yes, and several are happy with loser pays, so your argument, such as it has been, not the slam dunk you hint at.

          1. The general consensus was that there was no proof it would lower court costs or decrease frivolous lawsuits (even using Alaska as an example), it would require a massive regulatory regime to verify billing costs, the addition of litigation insurance like Europe (because we all know what a boon insurance has been in reducing healthcare costs), and a complete reworking of the US legal system in order to conform with the new paradigm.

            And there was also discussion that there are already several tools available to judges to end most abuses with frivolous lawsuits that would render any gains from loser pays moot.

            “Happy” has nothing to do with it, son.

            If your reading comprehension were just a tad higher, you might be able to grok I’m not making an argument. I’m asking those who are arguing for loser pays to justify their position, of which the evidence and logic has been fuckall.

            I also see you, sage that you are, asking for the same evidence.

            1. “The general consensus was that there was no proof it would lower court costs or decrease frivolous lawsuits (even using Alaska as an example), it would require a massive regulatory regime to verify billing costs, the addition of litigation insurance like Europe (because we all know what a boon insurance has been in reducing healthcare costs), and a complete reworking of the US legal system in order to conform with the new paradigm.”
              Yes, you’ve linked one discussion which agrees with your claims. Olson certainly did not agree, there or otherwise:
              “It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.”
              https://www.overlawyered.com
              /2003/06/essay-on-loser-pays/

              And there was also discussion that there are already several tools available to judges to end most abuses with frivolous lawsuits that would render any gains from loser pays moot.

              “”Happy” has nothing to do with it, son.”
              Assholery has a lot to do with it, asshole.

              1. “If your reading comprehension were just a tad higher, you might be able to grok I’m not making an argument. I’m asking those who are arguing for loser pays to justify their position, of which the evidence and logic has been fuckall.”
                Of course you are; you never meant to suggest you had evidence to make the opposite argument. You were just asking for evidence when you posted that bullshit about a courtroom packed with Sony lawyers, right?
                It’s fun beating on know-it-all assholes, since it doesn’t take long to find the claim of knowing it all and being an asshole about it is typically a mask for some casual familiarity with the subject. As you’ve shown.
                Fuck off, asshole.

                1. It’s fun beating on know-it-all assholes

                  “And how much of loser pays should be required in the Sony example?”

                  “I am in no sense a legal historian.”

                  “And for those playing at home, a round-table discussion of loser pays that informs a goodish portion as to why I think it is probably less a panacea than its proponents make it out to be.”

                  ?\_(?)_/?

                  Yes, I imagine that is terribly important for you.

                  1. Qsl|1.16.19 @ 10:53PM|#
                    “It’s fun beating on know-it-all assholes”
                    Yes, it is, know-it-all asshole.

                    “And how much of loser pays should be required in the Sony example?”
                    “I am in no sense a legal historian.”
                    “And for those playing at home, a round-table discussion of loser pays that informs a goodish portion as to why I think it is probably less a panacea than its proponents make it out to be.”
                    ?\_(?)_/?
                    Yeah, walk it back, asshole. You didn’t really mean that bullshit was meant to support the argument you now claim you weren’t making; we get it.
                    Try something new; you think we haven’t read that steaming pile of shit before?

                    “Yes, I imagine that is terribly important for you.”
                    Projection is just one symptom of assholery.

    2. The problem with ‘loser pays’ is it assumes that the party that should lose always does.

  5. We would be better able to “get on with our lives already” without the state, not by na?ve utopian adherence to mini-archism.

  6. I better not find that this post was sponsored content from Big Political Compass.

  7. In 2002, he founded Common Good, a nonprofit whose credo is “simplify government, put humans back in charge, and cut mindless red tape.”

    Our Mission
    Common Good is a nonpartisan reform coalition with one basic goal?to restore the freedom of officials and citizens to use common sense.
    We propose practical, bold ideas to simplify bureaucratic structures so that Americans can roll up their sleeves and get things done.
    Common Good’s philosophy is based on a simple but powerful idea: People, not rules, make things happen. By preventing us from using our judgment on the spot, modern bureaucracy causes failure and frustration.

    Uh. This guy’s charity is not necessarily Libertarian. He views the problem with government as having too many rules to restrict it.

    1. I am with you. First of all, I never trust anyone who speaks of the “common good”. Or of “simplify government”. I don’t necessarily want government to be simple. I want it to be small.

      And while I wholeheartedly agree with the statement that “people, not rules make things happen”, I don’t think he means get the government to have less rules (and as a result, have less of a role altogether) and let people make things happen. It sounds more like less red tape for TOP MEN to get things done.

      1. While he may not be strictly libertarian, there is no reason why people can’t join forces to roll back the government. Sure, some will declare their work done early, but at least they were helping when the problem was much bigger. We have a long, long road to go cutting back the leviathan before we need to worry about defining what the minimum acceptable government size needs to be.

        Secondly, his impulses seem to be anti-top-men. Specifically, he talks about people making decisions on the spot, rather than being guided by rules. This seems pretty well in line with most libertarians- that the best decisions get made at an individual level, rather than by a top person defining the best case to fit all possibilities.

        1. Full disclosure: I haven’t looked very deeply at him or the organization. So you might very well be correct. If so, then so much the better. I am just generally suspicious of some of the buzzwords his organization uses.

        2. You might be correct Overt. I never heard of the guy but red flags appeared when I saw that on his website.

          Plus, Reason has made me extra skeptical of almost anyone they endorse. I just dont trust Reason staff.

    2. So, it’s good to get government out of areas where it has no business being, but, the power of government being what it is, anything government does do should come with lots of rules. You don’t want that power used creatively, with individual officials allowed to bend the rules to get things done.
      Government power must have a very tight straight jacket on its use, and if the problem requires creativity, then the government probably isn’t the entity to be doing the job.

  8. OT: ATLANTA ? A 21-year-old Cumming, Georgia man has been charged with planning a “mass casualty” attack on the White House and other locations in Washington, D.C., according to federal prosecutors.

    ATLANTA ? A 21-year-old Cumming, Georgia man has been charged with planning a “mass casualty” attack on the White House and other locations in Washington, D.C., according to federal prosecutors.

    U.S. Attorney B.J. Pak made the announcement on the steps of the Richard B. Russell Federal Building in Downtown Atlanta, Wednesday.

    According to Pak, law enforcement arrested Hasher Taheb after a year-long investigation by the Atlanta Joint Terrorism Task Force, which includes the FBI.

    The investigation, Pak said, began after a tip from someone in the community. It claims that Taheb planned to use explosive devices and an anti-tank rocket to carry out his attack.

    Generation Zers are really stepping up the insanity.

    1. Question: where did idiot #1 plan on getting an antitank rocket? Smells like entrapment.

      1. You can buy rocket launchers at gun shows.

        Some come with inert rockets and some dont.

  9. Kevin Mallory: The churchgoing patriot who spied for China

    In a real-life episode of The Americans, a TV spy drama that takes place in northern Virginia, Mallory had lived a double life: he helped people on his street with yard work, went to church and assisted immigrants with income-tax forms. Yet at home he communicated with Chinese agents through social media and sold them US secrets.

  10. He helped immigrants? Hang him!

  11. Very good.

    Common sense says the federal government should be cut by 96%.

  12. People whining about Right and Left are whining about democracy. Right and Left end up being the names of the dominant clusters fighting for control.

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  14. Yes let’s try to make “sense” common again.

    If justice requires an environment of “the truth, the whole truth and nothing but the truth”, and we want to live in a just society, then it makes sense we should encourage laws and rights that support and promote the discerning and sharing of truth.

    Advocate for the human right to voluntarily record all our memories, to share as required with those who need them to discern the truth.

    This one thing will initiate the most significant improvement in social justice since the concept was first conceived.

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  16. Why is The Jacket interviewing this watered down nanny-stater?

    The podcast boiled down to “let’s remove rules so regulators can instead use their discretion”.

    Yeah, because “prosecutorial discretion” has been so effective. And, graft, regulatory capture? That never happens…

    The regulatory state is a horror. The solution is not to replace it with empowered bureaucrats. The solution is to eliminate, not replace it.

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  18. Apparently, the problem with the regulatory state is that Howard isn’t in charge of it.

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