ANECDOTES NOT ANTIDOTES

By Richard Lacayo

Not just anybody can make a best seller out of the bone-dry topic of regulatory law. That is why this year's most prodigious hard-cover phenomenon is The Death of Common Sense: How Law Is Suffocating America (Random House; $18). A short, sharp strike against the superabundance of government regulations, the book is entering its seventh week on the best-seller lists. It's a feat that makes Philip K. Howard, the New York corporate lawyer who wrote it, a polemicist to be reckoned with. In the same way that liberals and conservatives spent last year trying to drag Forrest Gump into their respective camps, all sides in the regulatory fight have been struggling to claim Howard. Senator Bob Dole has conferred with him. So has President Clinton, who had the author with him last month when he introduced a group of regulatory reforms at a printshop in Arlington, Virginia.

Howard has the zeitgeist with him, or at least the antiregulatory political winds in Washington. To the extent that the rules are overgrown and ready for review, it would be good to have a brief volume at hand that helps strike a balance between the needs of business and the public good. But as a guide for the perplexed, Common Sense won't do--at least not if what we need is a well-founded account of the regulations at work in a few real situations, followed by some bright proposals for how to simplify them. Howard's book offers very much the opposite. Like any manifesto, it is chiefly a rhetorical exercise short on concrete suggestions. What it is amply stocked with are loosely detailed horror stories about regulatory mischief. Some of them are memorable; some partial or misleading; some flatly wrong.

Howard says regulations of all kinds--workplace safety rules, environmental-quality controls, municipal building codes, state contracting guidelines--have become so numerous and highly detailed that they breed paralysis and contempt for the law. We wouldn't need so many, he argues, if we just left more room for common sense. "We rewrote our legal and regulatory system in the past few decades essentially to banish human judgment from government decisions,'' Howard recently told TIME. Blame the Enlightenment's faith in rationalism, he says in his book, for its false hope that human affairs might be submitted to a regime of ironclad reason. Next blame the trend in 20th century law to make rules so specific that they anticipate every small circumstance. Add to all that the rights revolution of the postwar era, during which every category of aggrieved citizen staked out nonnegotiable demands.

Howard's book is replete with anecdotes about unyielding rules and misguided but costly regulations. For readers who might not otherwise be absorbed by the very fine print of municipal ordinances, which is to say most people, there is a kind of horrifying fun in tales about the New York State fire code that limits display of student drawings to 20% of classroom wall surface. (The paper is combustible.) Or the workplace safety regulation specifying how far a plank may extend from the edge of a temporary scaffold (for the record, 1 ft.).

Talk to anyone who has ever been regulated--or for that matter, many regulators--and they will tell you stories that are not so different. The problem with trial by anecdote, however, is that it can play rough with the rules of evidence. On closer examination, some of Howard's best tales turn out to be more complicated than they seem in his brisk retellings.

When he complains about the costs imposed by the federal Americans with Disabilities Act, he cites Minnetonka, Minnesota, where city officials "had to alter the municipal hockey rink to make the scorer's box wheelchair accessible." When was that? asks Kathy Magrew, the city official who monitors compliance with the act. In her account, Minnetonka was asked to come up with plans to accommodate disabled people who might want to keep score. Officials developed estimates on the cost of altering the box but also determined that the law could be satisfied simply by moving the scorer's equipment out of the box whenever a disabled person asked them to. So far, none has. "You have to use common sense,'' says Magrew. At least in this case the rule was already flexible enough to allow for it.

There are similar problems with Howard's account of a dispute between the Environmental Protection Agency and the Amoco Oil Co. He criticizes an EPA regulation that he says required the company to install smokestack filters to reduce benzene, a dangerous pollutant. As he tells it, Amoco was indeed emitting significant amounts of benzene, but not from the smokestacks. The real problem was in pollutants that escaped at dockside whenever gasoline was pumped into barges. The moral of the story is that Amoco spent $31 million to satisfy a myopic EPA regulation, even as the more serious hazard went unattended.

Or maybe not. For one, representatives at both Amoco and the EPA say the rule in question applies not to smokestacks but to conduits that channel wastewater. More to the point, the Natural Resources Defense Council, an environmentalist group, insists that it has long been known that loading-dock leakage is the real problem, but oil companies have fought attempts to regulate it. "The industry has been arguing that [the problem] is trivial," says NRDC attorney David Driesen. As for the "easy and relatively inexpensive" remedy that Howard says Amoco and the EPA arrived at during a dockside huddle, Amoco has not changed its practices. In the meantime, the EPA has proposed regulations that cover the problem. Amoco says it is waiting for them to enter into law.

Expand the view on some of Howard's other anecdotes and in rush more of the complications that make regulatory law a tricky balancing act. He tells the story of a "tiny coffee shop in New York's Little Italy." After a visit by city inspectors, the owner started serving customers on disposable plates and forks because of rules that required him to install a dishwasher-his place was too small for that--or to wash dishes by an "impractical" chemical process. Just doing them in the sink, his usual practice, was prohibited.

What the city actually requires is that dishes be washed in water hot enough to kill such germs as Salmonella and Staphylococcus (170uF), says Jenene G. Garey, director of the food-service management program at New York University. In the absence of a dishwasher, a sink-side temperature "booster" is acceptable. "People who go to a restaurant assume certain healthy precautions are taken," says Garey. "Anybody who's gotten sick at a restaurant should appreciate rules like this." In reply, Howard says the problem with modern law is its false assumption that you can eliminate every risk. "People have lived for millennia without dishwashers or chemicals," he says. "This is a very clean little coffee shop."

Howard's parables of the regulatory state don't all point to the conclusion that we should disarm government by taking scissors to the statute books. In places, his message is that we should unleash government by writing fewer rules but broader ones, giving regulators more latitude to use their own judgment. That is the lesson he wants to convey in another story, about the great Chicago flood. There too the devil is in some of the details Howard glosses over.

Three years ago, large parts of downtown Chicago were flooded when the Chicago River burst through a railroad tunnel. The ensuing damage was estimated at more than $1 billion. John LaPlante, then the city's acting transportation commissioner, had been advised several weeks earlier of the leak in the tunnel. When a contractor asked for $75,000 to repair the leak--about seven times the amount LaPlante had expected--he sought other estimates, and he was still waiting for them when the tunnel collapsed.

That's proof, says Howard, that bureaucrats are so caught up in honoring the processes of law that they fail to act even when they plainly must. LaPlante should simply have exercised an emergency clause in the city's rules, swallowed the high figure and fixed the leak right away. But LaPlante, who's not quoted in the book, says, "People working closest to this said that for all we knew it could last 20 years." And as it turned out, he notes, the tunnel collapsed even before the contractor who made the initial bid could have saved it.

Whatever its shortcomings, Howard's book has appeared just in time to serve as a manifesto for Republicans in Congress who are hoping to carve away a whole panoply of health, safety and environmental regulations. In March the House G.O.P. pushed through a bill that would have imposed a one-year moratorium on most new federal regulations. While the Senate balked at that, last week it unanimously approved an expansion in the power of Congress to review certain high-cost federal regulations within 45 days after they're enacted. That would make it easier for industries to get a second hearing on regulations that are picayune or overly expensive. The next day the Senate Judiciary Committee held hearings on a bill sponsored by majority leader Bob Dole that would require many regulations to pass a complicated cost-benefit analysis.

Howard's fans are right to claim that overstuffed government code books could use a good going-over. The tricky part is arriving at a principle--or, to use the dirty word, a rule--to guide the housecleaning. Without solid and even confining rules for the bureaucrats we spend so much time complaining about, who is ready to trust them to exercise their power? And without well-crafted rules that ensure strict, maybe even overly strict, compliance, how do we prevent a return to the worst days of polluted water, unwholesome foods, bad air and bloody assembly lines? You can imagine the anecdotes that would come with those. --Reported by Adam Cohen/New York

With reporting by Adam Cohen/New York