Sunday, December 15, 2013

Of the Lawyers, By the Lawyers, For the Lawyers

Recently, David Brooks read an article by Francis Fukuyama about “The Decay of American Political Institutions.” Fukuyama bemoaned the disintegration of American politics into an ongoing struggle between special interest groups, advocacy lawyers, bureaucrats and the court system.

That this toxic mix renders government dysfunctional is not news. Fukuyama offered an example:

During the 1970s the Port of Oakland initiated plans to dredge the harbor in anticipation of the new, larger classes of container ships then coming into service. The plan, however, had to be approved by a host of governmental agencies, including the Army Corps of Engineers, the Fish and Wildlife Service, the National Marine Fisheries Service, the EPA, and their counterparts in the State of California. A succession of alternative plans for disposing of toxic materials dredged from the harbor was challenged in the courts, and each successive plan entailed prolonged delays and higher costs. The reaction of the EPA to these lawsuits was to retreat into a defensive crouch and go passive. The final plan to proceed with the dredging was not forthcoming until 1994, at an ultimate cost many times the original estimates. 

Or this:

… special education programs for handicapped and disabled children have mushroomed in size and cost since the mid-1970s as a result of an expansive mandate legislated by Congress in 1974. This mandate was in turn built on earlier findings by Federal district courts that special needs children had “rights”, which are much harder than mere interests to trade off against other goods, or to subject to cost-benefit criteria. Congress, moreover, threw the interpretation of the mandate and its enforcement back to the courts, which are singularly poor institutions for operating within budget constraints or making complex political tradeoffs. 

Big business and big banking have their own lobbying groups. They have succeeded in creating all manner of tax loopholes for themselves. The highest corporate tax rate is in name only.

And yet, many of the most influential special interest groups come to us from the left:

Some of the most powerful organizations in democratic countries have been trade unions, environmental groups, women’s organizations, advocates of gay rights, the aged, the disabled, indigenous peoples, and virtually every other sector of society. One of the reasons that the American public sector has been so hard to reform is the resistance of public sector unions. Pluralist theory holds that the aggregation of all these groups contending with one another constitutes a democratic public interest. But due to the intrinsic over-representation of narrow interests, they are instead more likely to undermine the possibility that representative democracy will express a true public interest. 

Many of these groups use the threat of lawsuit to impose their will on everyone else. If a small school somewhere in rural American decides to have its choir sing Silent Night some atheist advocacy group will threaten to sue. The school cannot afford the court fight and backs down.

The people are angry. Why would they trust a government or a judicial process that is being used to bully and harass them?

What can be done? Having analyzed the problem-- government of the lawyers, by the lawyers and for the lawyers— Fukuyama shrinks from the obvious conclusion: shut down bureaucracies and reduce regulations in favor of free market solutions:

The solution to this problem is not necessarily the one advocated by many conservatives and libertarians, which is to simply eliminate regulation and close down bureaucracies. The ends government is serving, such as ensuring civil rights and environmental protection, are often important ones that private markets will not satisfy if left to their own devices. Conservatives often fail to see that it is the very distrust of government that leads the American system into a courts-based approach to regulation that is far less efficient than that found in democracies with stronger executive branches. But American progressives and liberals have been complicit in creating this system as well. They distrusted the bureaucracies that had produced segregated school systems in the South, or had been captured by big business interests, so they were happy to inject unelected judges into social policymaking when legislators proved insufficiently supportive. Everyone had his reasons, and those reasons have added up to massive dysfunction.

Fukuyama is arguing that distrust in government leads to courts-based solutions. As though the courts were not an instrument of government and as though the courts are not responding to the challenge of incoherent and absurd legislation and regulation. Perhaps there was a time when it was necessary to deal with certain issues in the courts, but by now this recourse has metastasized, to the point where next-to-nothing gets done... beyond generating ill will.

Would Fukuyama suggest that the boondoggle of the Port of Oakland, which he so skillfully described, protected the environment? Or did it make work for political activists and lawyers?

How much segregation was produced by Jim Crow laws and how much of it was produced by the free market?

If the nation has become divided into warring factions— special interest groups and their lawyers— the American people are right to distrust their government. After all, the purpose, as Fukuyama notes, is not finding the common good or doing what is right for the nation. It’s about doing what is right for this or that interest group.

Why would anyone trust it? And why would an empowered executive branch solve the problem?

We already have an executive branch that is owned and operated by special interest groups. You know and I know that Obamacare does nothing about tort reform because trial lawyers, a powerful special interest group in the Democratic Party never would have stood for it.

Ask whether government employee unions are in it for themselves or for the general good and people will laugh.

Why does Fukuyama believe that a more powerful executive would not be influenced by the special groups that got him elected?

Echoing Fukuyama Brooks argues that we could solve the problem by increasing executive authority. Apparently, he is inspired by the “monumental example of executive branch incompetence,” called Obamacare:

This is a good moment to advocate greater executive branch power because we’ve just seen a monumental example of executive branch incompetence: the botched Obamacare rollout. It’s important to advocate greater executive branch power in a chastened mood. It’s not that the executive branch is trustworthy; it’s just that we’re better off when the presidency is strong than we are when the rentier groups are strong, or when Congress, which is now completely captured by the rentier groups, is strong.

We don’t need bigger government. We need more unified authority. Take power away from the rentier groups who dominate the process. Allow people in those authorities to exercise discretion. Find a president who can both rally a majority, and execute a policy process.

Evidently, Brooks is not thinking clearly. The reason we have Obamacare is that the executive branch, in association with a Democrat majority Congress decided that it had to get its way. Obamacare is a grandiose effort to replace the private insurance market with a government-run monstrosity.

Brooks thinks that he is being clever. He isn’t. Under the current circumstances a sensible approach would be more free market solutions.

Obamacare is not a sign of insufficient government authority, just the opposite.

The real solution is looking everyone in the eye. The only problem is, neither man has the courage to say it: find a way to diminish the power of lawyers. Hopefully, it will never get to the point where people will start thinking of Shakespeare’s more radical solution: “The first thing we do, let’s kill all the lawyers.”

A country of the lawyers, by the lawyers and for the lawyers will not long survive.


Mark said...
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Mark said...

Yup. Americans in general don't realize the fear and loathing felt by international business towards America's legal and regulatory monsters. US residents and US jurisdiction are routinely shunned.

Obamacare will be cited for centuries as the locus classicus of big government at work with virtually unlimited time and money. But don't forget the even funnier case of the schizophrenic signer gesticulating in faux Zulu beside Obama and the other bigwigs at Mandela's funeral. The Obaman retinue floats down into South Africa aboard the Imperial Intergalactic Airfleet with redundant everything and bodyguards for the bodyguards; the NSA blankets the entire electromagnetic spectrum; the resources applied to deal with the risks are humungous...and yet...Monty Python never constructed a more hilarious scenario....the Grand Poobah of Cool doing his teleprompter thing to sanctify a dead terrorist, while the superbly distracting and distracted signer with violent hallucinations does his pc thing to show the world how inclusive of deaf Zulus are the Poobahs....signifying nothing, but signifying everything.

Sam L. said...

The late Brother Dave Gardner said on one of his comedy albums, "A liberal is a person educated beyond his capacity to understand." Fits Brooks and Fukuyama to a T.

JKB said...

Found this at Makezine in a document 'Tips My Dad Says'

"My father (a lawyer) told me: "Company culture is driven from the top -- if it's the people who make the product, your good; sell the product, your OK; f the accountants take over, look for another job; and if the lawyers take over, run as fast as you can" -- Alden Hart

Anonymous said...

We have so many laws and regulations, abiding by them all is hopeless.
My last few Fed Seminars: If someone thinks you offended her, you Did (I was reprimanded twice - for saying "uvula"; and describing the life cycle of the botfly). Among other iffy topics.
How many K's of pages in the Fed Register? Has anyone of note read all 250? 2500? pages of Obamacare?
With all the local, state, & Fed laws & regs, how can anybody Not Connected start a business that isn't a Web app?
Is Trust (Fukuyama wrote a book about it) breaking down? Competence? Probity? ... I have a headache -- Rich Lara

jim sweeney said...

The type of lawyer of whom you complain is akin to the abortionists among doctors: a non-representative sample. Most of us just get on with the day-to-day legal stuff and are not complicit in the shenanigans in federal courts. It is, however, a reminder as to why it is improtant to elect politicos who appoint sensible not power hungry judges.

Dennis said...
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Stuart Schneiderman said...

Jim's point is well taken. Clearly, this type of post tends to lump all lawyers together, and clearly most lawyers are not involved with such shenanigans.

I think that point that Fukuyama was making-- and which I perhaps expressed poorly-- concerned the influence of advocacy lawyers on the way government functions. They are probably few in number but they exercise an outsized influence.

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