Dependency on red tape - 27 January 1995

It would be natural for any listener, I might say any regular listener to say: of course he's going to talk about the OJ Simpson murder trial. More earnest listeners might say: Surely the president's State of the Union speech is more important. I don't propose to talk about either of these topics, which I grant have together absorbed the attention by night or by day, of a vast number of Americans.

The president as usual made a splendid, intelligent, eloquent address, showing again his firm grasp of all the problems – it's the thing he does best – but his constant problem has been to be able to do what he says he will do. And we have the rest of the year to see, if for once, Mr Clinton can see his most fervent wishes turn into law.

If the Los Angeles trial were of one Fred Simpson, an anonymous black man charged with a double murder, we should hear no more about it than a first one-night television mention, and nothing more till the verdict. But the defendant is a very handsome black man, a once superb athlete, the best running back in the history of American football, and so a hero to most males and a role model to poor black boys. And so these, all these attributes of the man charged, make this trial a godsend to the tabloids; its interest to onlookers is mainly prurient. It's also a tragic melodrama. Is Mr Simpson greatly maligned? Is there, as the defence darkly hints, a phantom killer or killers? Or is Mr Simpson a disturbed, infantile wife-beater plagued by jealousy to the point, like Othello, of murdering the woman he loved not wisely but too well?

The trial, we're told, is likely to run between three and six months and from time to time there maybe things in it that transcend its prurience, and will have some meaning to people outside this country. For the moment, I find among corresponding listeners, much more interest in the involved American legal procedures.

Why did this case take eight months to come to trial? Why does it take three weeks, a month, six weeks in America to choose a jury, whereas in other equally just and democratic societies it takes a day or so? Why is this trial expected to last from three to six months? These questions come along to coincide with the book, just out here, which with an unblinking eye examines a general situation in the carrying out of American law that's as bad as Dickens's caricature of the Court of Chancery in Bleak House, and that, so obvious that as Aristotle said "it never gets noticed".

The author of the book is Philip Howard, a Kentuckian son of a Presbyterian minister, who founded his own law firm in New York and has been active in public affairs for about 20 years. His theme is simple and devastating. It is that making rules as precise as possible for the carrying out of the law has become almost a religious tenet, so that lawmakers – local, state, national – make, quote "detailed rule after detailed rule," which addresses every situation lawmakers and bureaucrats can think of. This slows down the administration of the law to the pace of a turtle overburdened with a load of red tape. Is it, Mr Howard asks, a coincidence that almost every encounter with the government is an exercise in frustration? Only 30 years ago, the forest rangers in the national parks and forests carried a little pamphlet of rules in their shirt pockets. Today, they have to consult several volumes of fine print.

Here is a moving and horrifying example of what Mr Howard has in mind, from the many, many scores of examples he's discovered and collected. Six years ago, Mother Teresa hatched a plan which was agreed too by the then mayor of New York, to search through the South Bronx – a villainous slum north of Manhattan – and find an abandoned building to convert into a shelter for the homeless. The nuns of Mother Teresa's order, the Missionaries of Charity, found two buildings gutted by fire, just right. New York City offered them to the sisters for one dollar each, a promising and magnanimous start.

The order had raised half a million dollars for rebuilding and renovating. They would take care, they figured, of over 60 homeless men in conditions of comfort but without luxury – the sisters not only take a vow of poverty, but forego the use of all so-called modern conveniences. The city owned the buildings, but no single city official could effect the transfer. That would be up to a half-dozen city bureaus and committees and commissions. So, for 18 months, the sisters tramped between them and testified to their simple needs at very many hearings, all recorded, transcribed, at the taxpayers expense. And at the end of that time, all the relevant city officials stamped their approval of the plan when the sisters found themselves confronting the elaborate New York City building code, and one requirement in particular; no building above a modest height maybe renovated without having installed a lift. It would cost $100,000. The sisters were in despair. They did not need, the homeless would not need, a lift, but the law could not be waived.

At the end of two years, Mother Teresa thanked the city for its benevolent consideration, admitted she had been educated in the law and its many complexities, and regretfully withdrew the project. The money, she thought, could be better used for soup and sandwiches.

Mr Howard appears to believe that this stifling tendency to build, as he puts it, an interlocking network of rules laid out in advance which would serve as a bulwark against the forces that are resisting regulation. He says it came rolling in on what he calls a "surge of law-making in 1970" when President Lyndon Johnson announced his great society program, and the government's lawyers swarmed in to imagine all the freewheeling situations that might require the breaks of the law, and then to write the laws in careful and elaborate detail. I'm sure Mr Howard is right about the growth of this habit into an ironclad system, but I would dare to say – in fact, I do say – that it's an American tray or trait that has been there all through my time and I'll give you a homely personal example of it.

Once America was in the Second World War, very shortly after Pearl Harbor, government reverted as it does in all countries to the centre, to here to Washington. And as you know, as anybody knows who's ever been at war, war sprouts new bureaus like wild mushrooms. One of them, obviously, was the Draft Board. Conscription – who was going to be conscripted who could be deferred or excused? Another was the National Petrol Rationing Board, which spawned local boards throughout the land who consider local applications for petrol.

I knew a government lawyer, who sat down one fine night with a dozen colleagues, and they then and there, within a day and a night, got out a rule book, a huge list of regulations covering every trade and profession and age group and marital condition in the country. They imagined the daily needs and the emergency needs of every type of citizen. This rule book was delivered everywhere and strictly applied. And that's the rub.

When I came to make a comparison – which was very odious to Americans – with the British system, I had to confess it could hardly be dignified by the word 'system', if so it was very rough. A group of locals – wherever a magistrate, the local butcher, trade union man, schoolmaster, the vicar got together – had about as many rules or guidelines as would go on a postcard. Plainly doctors deserved special treatment, firemen, police and so on. After that you heard the man's case and talked it over and decided what seemed like the sensible thing to do.

My government friend here told me that the Petrol Rationing Boards had no leeway for their own initiative or the, shall we say, the intrusions of common sense. They must go by the rules, the categories, already brilliantly imagined. Unfortunately, one of the unimagined categories was the Chief British Military Advisor to the President of the United States, Field Marshal Sir John Deal. As I recall, he was turned down. It took the personal intervention of Mr Churchill with the president to get the field marshal a petrol ration card. There were three cards: an A card, which gave every citizen a limited amount of petrol – I think it was two gallons a month – a B card, with a more generous allowance, was given to doctors, firemen, police and the third, most desirable and rarest, was a C card – unlimited petrol – and that's what eventually the field marshal got.

There was another category unimagined by that inventive board: a foreign correspondent here, who was an American citizen, writing to or broadcasting to one of the allies, like A Cooke. I told them I had an assignment to drive all around the United States and say what the war was doing to America and what Americans were doing for the war. The board was deeply moved, but not to the point of tears or of granting me a card of any grade. At that stage of the war, Americans tended to look on any British correspondent – and especially if he was the bizarre case of also being an American citizen – as a spy or perhaps a double agent. Shamelessly, I went down to see my government friend who'd been on the original creative board. He told me about the field marshal and other comicalities, all sorts of dependents and disabled not allowed for, Wyoming Rangers, who have to drive 50 miles a day just to watch their herds. Maybe, he said, the British have it right, but it's not our style, maybe we should trust more to ad hoc committees and the light of common sense. You can see how that phrase set off a resounding echo when I came on it in Mr Philip Howard's splendid and exasperating book. It is called The Death of Common Sense: How Law Is Suffocating America.

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