Empowering Everyday Choices: A Conversation on Philip Howard's "Everyday Freedom"

SUPPLEMENTARY RESOURCES

Howard, P. K. Everyday Freedom: Designing the Framework for a Flourishing Society (Rodin Books 2024).

Nicholas Bagley, The Procedure Fetish, 118 Mich. L. Rev. 345 (2019).

A transcript of the full episode is available below. Please excuse typos due to inaudible passages or transcription errors.

Levi: Hello and welcome to Reasonably Speaking, a podcast of The American Law Institute. I’m David Levi, president of the Institute. Today, we will be talking about Philip Howard’s new book, Everyday Freedom: Designing the Framework for a Flourishing Society.

Philip is with us. He’s a member of the ALI. He’s a lawyer and a writer. He went to Yale College and UVA Law School, and then he practiced at some notable firms, including one that he started and most recently with Covington. His books tend to look at how the legal system may be distorting or disturbing what I’ll call the “social contract.” And his first book, The Death of Common Sense, was quite a bestseller.

Judge Edith Jones and Professor Nicholas Bagley will join in on this conversation. Judge Jones has had a long and storied career as a judge of the Fifth Circuit Court of Appeals. She was appointed to the bench by President Reagan in 1985, at the tender age of 35. I think I heard you speak at an event in Sacramento right around that time, maybe 1988. I didn’t realize how young you were. She served as chief judge from 2006 to 2012, and she’s well known for her judicial writings and other commentary. She’s a graduate of the University of Texas Law School. She practiced law in Houston before her appointment to the bench, and she is a member of the ALI.

Nicholas Bagley is the Thomas G. Long Professor of Law at the University of Michigan. His areas of study are administrative law and health law, and he’s been in and out of government at the federal and state levels. He clerked for Justice [John Paul] Stevens and for Judge David Tatel, and his law degree is from NYU, where he graduated summa. But most importantly, he was a student of Ricky Revesz, our esteemed former director.

In 2019, Nick wrote a very interesting law review article in the Michigan Law Review called “The Procedure Fetish.” The article and Philip’s book share some points of view in common but maybe seem to have different underpinnings, and we’re going to explore that further because it’s pretty interesting.

Philip, we should start with you. We’re here because of your book and it’s a very good book. I’ve got my copy right here. It’s very handsome, easy to read. I would call it an extended essay, really. It’s very readable. So welcome, and why don’t you tell us what everyday freedom is, and why you decided to write this book.

Howard: Well, first, thank you for having me for this discussion. The book actually came out of a forum at Columbia in the spring of 2023 that I helped organize. It was too long for an essay and too short for a real book, so it got published as a very short book.

Basically, I argue that some of the things that people see that’s wrong with American society today, some of the things Nick writes about—the inability to give permits for infrastructure, the difficulty in dealing with homelessness, the inability to fix bad schools, red tape in healthcare, and the populist resentment, this sense of people really sort of hating Big Brother become almost a contagion among certain segments of society—I think those are symptoms of system failure and specifically, a legal and governing structure that was rebuilt after the 1960s that is designed to disempower people in their daily choices; to tell them either how to do things through thick rule books or to make them prove with procedures what the right choices are. And many of these choices are inherently unprovable. They’re value judgments and involve trade-offs and such.

I'm arguing that unless we restore what I call “everyday freedom” to people who fulfill their responsibilities, that not only will things continue not to work well, continue not to build infrastructure, continue not to fix bad schools, but we'll also have an ever-rising tide of resentment within the society.

Levi: You spoke about two things that you said are part of the cause of this alienation. One is you say these rule books, this codification of very specific kinds of directives to people that run programs. And then I think you’re also talking about the proceduralism on the other side, that there's just so many steps, even if you don't have a rule book, that people are not empowered just to make a decision and get on with it.

Howard: Right. I mean, I think we woke up to all these abuses of authority in the 1960s. They were abuses and racism and pollution and unsafe cars, et cetera. We not only changed our values, which was good, but we came up with a new way of implementing law, which was to make people demonstrate that they’re doing it correctly. So, law went from being in sort of a system of outer boundaries to really interceding in daily choices. It came into the field of freedom. “Is your paperwork in order? Did you comply with this rule? Can you prove that Johnny threw the pencil first in the classroom if you’re a teacher? Can you prove that this person has bad judgment when you dismiss them?” That sort of thing. And those choices are … I argue that we can’t take law down to that granular level.

Levi: People continue to be very worried about bias by decision-makers. You can’t operate in any environment now and not realize that this is--it’s not just coming down from above from the law, but it’s also bubbling up from below from people. They’re very focused on the bias of decision-makers and quite distrustful as you pointed out. And it’s not just conscious bias, but it’s implicit bias, and it’s all sorts of bias. I'm wondering, I know you think this is going too far, but how do you get to the right place on this?

Howard: It’s a really good question. First of all, there are biases. I mean, we all have biases including implicit biases, and we don’t know what they are. So, it’s perfectly fair to be on guard for it. But what I argue is that the way to protect against that is by checks and balances, by judgment, by the judgments of other people who know the people. It’s not with legal proof, that in most of these settings, legal proof basically prevents any judgment at all. The manager’s job, or the supervisor’s job, is to supervise the employee. That requires judgments. And if you require legal proof, then effectively you disempowered those people from doing their job. It would be perfectly fair, as some factories do, to give a worker’s council a say when you’re dismissing somebody. Do you think this person’s doing a good job or not? There are all kinds of ways you can put in checks and balances to sort of try to at least respond to the distrust. But, I argue, you can’t prove it in a legal sense.

Levi: You’ve touched on this before, but let’s see if we can find out where the passion comes from. You’re an anti-codifier. You don’t like these big code books.

Howard: First of all, most of the things I’m talking about are not matters of policy. They’re matters of implementation. So most of the failures of government today, the bad schools, too much red tape in healthcare, et cetera, inability to get permits for infrastructure, those were all failures of implementation. And so I’m arguing that these systems simply don’t work. I’m trained as an economist. My first job was working at the Oak Ridge National Lab for Eugene Wigner where I did economic studies on post-nuclear war recovery, sort of these delightful topics. So, I look at these things just from a microeconomic standpoint. What are the ingredients of a good school? How much freedom do the people in the school need to make those decisions? If we want to have new infrastructure, what is the authority structure that honors the goals of environmental review and public input, but also the trade-offs of time and value judgments so that we can make a decision within a year or two?

The systems we’ve created do one thing really well. They make people avoid responsibility. People like it. You don’t have to make a decision. The process goes on and on. You go to these scoping meetings in Washington on environmental reviews. You can’t believe how many people are in the room, how much they’re saying, and how little gets done.

Levi: You say some people like it, but other people really don’t like it because you say they feel very disempowered and just sort of unable to feel the satisfaction or the gratification of being effective.

Howard: Right. I think the public at large doesn’t like it, even though you’re right that they’re also distrustful, so they’re of two minds about it. They don’t want people to make decisions that affect them, but they want the schools to get fixed. The people within the system, many of them do like it because it’s a safe sinecure. It’s a safe job. My moles—I have all these moles throughout government and society who agree with me—My moles are typically government officials who want to get things done. And they’re the ones who come in with the stories and say, “I wanted to give a permit to fix this bridge, and here’s what I had to go through for five years,” or whatever it happens to be. I’m accused of being a conservative. Maybe I am a conservative. I’m not sure anymore. But I’m not a deregulator. I’m for making regulation work. And that requires a theory of authority. I mean the Constitution’s basically an allocation of authority. It’s three branches of the government, checks and balances, principles, and then people are elected or appointed and they make decisions. It’s a principles-based document. It’s 7,500 words.

We’ve got now a form of central planning that we call Federal Law and Regulation. That’s 150 million words. It’s probably, I mean, Nick would know this. I think it’s impossible to comply with. I mean, I don’t think you could possibly comply with everything and actually get anything done. It’s like that French expression from working to the rule. If you actually comply with every rule you take a hundred years. So, I think you would have to wake up to the fact that governing doesn’t work without choices, and we’ve taken it away from really everybody at every level of responsibility  the ability to make sensible choices.

Levi: You raised in passing this question of whether this book is in a conservative tradition or a liberal tradition. And I was confused about this myself. Maybe it has to do with some of your other writing. I thought maybe you were more on the conservative side but I wasn’t at all sure.

Howard: Well, that’s a good thing. I mean, just to be clear. I’m saying that officials have to have more authority. Not to do whatever they want and subject to checks and balances, but if you want to get a permit as a citizen, the official has to have the authority to give the permit. And if you want the process to be short, the environmental official has to have the authority to say, “Here are the three important impacts I think this environmental review should study. I think you can do that in a hundred pages, and I think you can do it in nine months,” or whatever it is. And if the official doesn’t have that authority and they do not at the moment, then the process goes on for 10 years. And the citizen or the business that wants to build the transmission line to the wind farms in Wyoming can’t do it.

Levi: I think maybe we’re programmed, or at least I am, that if somebody says, “Something bad has its roots in the 1960s,” I immediately think, “Well, this is a conservative person.” But then I see that Nicholas is also pointing the finger of blame at the 1960s as well. And just before I get to Nicholas because it’ll be interesting to see how he sees himself in relation to your book. You spent part of the last couple of chapters anyway talking about, “Well, how do we get out of this mess?” What is your solution?

Howard: First, I think our governing structure is overdue for I’ll call it a spring cleaning. The last time we had a change in governing philosophy and rebooted was in the 1960s. Before that was the ‘30s, when we got the idea of social safety nets. Before that was the Progressive Era, where we abandoned the philosophy of laissez-faire. I think that the current situation we’re in is closest to the Progressive Era, where we need to abandon the philosophy of legal micromanagement; where we go back to a system of a bounded authority and checks and balances so that things can move forward and people feel more ownership in their daily choices and in their community.

And ultimately, I think this can only be done—you can’t sort of negotiate it in a congressional committee, it would take forever—the way most changes are, the way the UCC was done. You got some people from the ALI together, and they came up with a draft of the UCC and it got embraced.

I think you need special independent committees—like base closing commissions in different areas—to make proposals, do pilot projects to see how they work, make adjustments, and then people feel comfortable with it, go to the new way of regulating healthcare, the new way of running schools and such.

And history would show—there’s a guy at the University of Texas, Brian Jones, who studies the history of change, it is punctuated equilibrium—change really only occurs in a crisis. And my concern now is that neither party has a vision for how to make government work better. Republicans want to just get rid of it, as far as I can tell, and the Democrats just want more of it.

The first step, I think, is to try to get people in different areas to come up with hypotheses, sort of Happy Meal A, Happy Meal B, of how things could work better. So, I’m working with leaders in healthcare on what a simplified structure for healthcare would look like. I’m doing a paper for Hoover right now on what a new structure for K-12 education would look like, what the constraints would be. I’m working on a paper with a big homelessness group on how to create an authority structure that brings the silos together to deal with homeless people. All of these things require, in my view, simplified authority structures so that we can make the choices to deal with these real social problems.

Levi: You’re doing a lot. Nick, let me see if I have this right. From “The Procedure Fetish,” I think you’re saying that the legalistic approach, or the procedural approach, to agency action is now sort of common ground to use one of Philip’s phrases of the left and the right for different reasons. And it’s led to inaction and ineffectiveness by government. The left wants to avoid regulatory capture and establish the legitimacy of the agencies through procedure. And the right just wants less activity by the central government. And so, the more procedure you have, the less actual activity you have. And so, they like that as well. And together it just produces a frozen-in-place kind of government, which is frustrating for a lot of people. Is that kind of a fair summary?

Bagley: Yeah, I think it’s a fair summary, and I think it has a lot of points of commonality with Philip’s book. In fact, I think that Philip is a fellow traveler. I come kind of a traditional liberal. I think of him, and you can correct me, Philip, as a one-time at least conservative. But I think we’re both diagnosing a similar set of problems. I think my canvas is maybe a little smaller than Philip’s. I’m focusing really on government, and he’s worrying about workplaces and worrying about a broader set of social institutions.

But I think our diagnosis is pretty similar. The legalism, the proceduralism, the distrust, the bulkiness of the system, the way it locks in the status quo, the fear of change. I also really admire the emphasis on that this is largely a failure of implementation. Often, it’s not even a deep disagreement about ends. And I admire too, his recognition that this is a problem not with any particular law but with the legal culture, which is why I think the book is so effective. It’s an essay directed at that broader legal culture.

If I can point to a place of difference, more for the sake of sparking conversation than anything else—because I think again, we are very much on the same page—Philip focuses on the way that we need to empower people to make reasonable choices subject to checks and balances, and seems to have in mind courts that still superintend very closely what it is government does, but they do so with a more sort of reasonable based approach. And he points to environmental review as a case study of how this could be better. And I actually think that maybe his prescription is in fact what we have already and it’s actually the thing that’s causing a problem.

Here’s what I mean. Environmental impact statements are reviewed in the courts pursuant to the Administrative Procedure Act. And the question there is whether the environmental impact statement involves the agency having taken a hard look at all the relevant questions and really delved into any of the objections that have been raised. And courts are effectively reviewing those EISs for reasonableness, and it’s the presence of that highly flexible court review that actually makes it impossible for administrators on the ground to do the reasonable thing.

What happens is you got an administrator of the Army Corps who’s thinking about a project and they’d like to curtail the EIS and focus really on the most important things. They know what the most important things are. They know that most of the objections are cockamamie objections from whoever trying to stop the project, but they can’t afford the risk that some judge—who might one day hear the case and knows nothing about the project, knows nothing about what an EIS looks like, is not an engineer with any kind of understanding of a project—might decide that the one option that they failed to canvas is enough to blow up the whole project. So, from my perspective, it’s actually the kind of reasonableness review that Philip seems to be so supportive of that has created some of the problems that we’ve got.

I’d prefer to move to a system where our institutions and agencies had a lot more authority with a lot less to fear from the courts and for the check there, not to be a judicial check, but to be a democratic check. That we should trust that yes, agencies are going to act in high-handed ways from time to time, they’re going to make decisions that we think are bad, but that's why we can vote the bums out. And I think we on the left certainly have lost track of the way that we need to try to make our case to the public and not try to make our case in the courts. We’ve become afraid of democracy and I think we need to re-embrace it.

Levi: There’s a lot in what you just covered. But how would you change that? Would that be a law change? Is that a culture change? How does it—

Bagley: Yeah, it’s a good question. Hard look review in the modern form sprang up almost fully formed out of the D.C. Circuit in about 1970. We could go back to an older vision of the APA where especially policy and factual determinations on the parts of agencies are effectively unreviewable in the courts, so long as they have even a glimmer of support in the record, something closer to rational basis review. The courts made the change themselves in the 1970s. At this point, I think it’s hard to ask the courts to undo it, although certainly, the language of the APA would accommodate that change. I do think we probably need some kind of legal change or at least some kind of cultural shift that says, “Listen, courts are good at reviewing pretty pure legal questions when it comes to agency action, but they’re pretty terrible at actually reviewing the underlying policy and factual determinations, or at least the consequences of empowering them to do so are too serious to indulge it.”

I do think probably you need some kind of legal change. Maybe you could do it straight through the courts, but I’m a little skeptical. You really do, at the end of the day, need a broader shift in legal culture. Just changing the APA at this point isn’t going to be enough because of the encrustation of lots of other procedural laws and norms and patterns of behavior and culture that have grown up in this highly defensive legalistic culture. So I do think in that sense, it’s not just a strict, a particular legal change, it’s a suite of legal changes that would have to be undertaken over the course of many years.

Levi: There’s a movement in the country in some places to have the courts be less deferential, get rid of Chevron deference and that sort of thing. How does that link to what you’re describing?

Bagley: I worry about it. I don’t want to overstate the importance of getting rid of Chevron. I think life is probably going to continue on much as it did before. And there’s certainly cases where agencies abuse their legal authority, and now I can understand the desire to keep them inbound, especially with presidents testing the limits of their power, right and left.

What I worry people miss is that the government does a lot of stuff that never makes the headlines. And most of the cases that involve judicial review are really... they fly under the radar and they involve the government trying to keep the lights on in various different ways. The more you create doctrines that allow courts to push back on the high-profile cases where they think there’s an abuse—and often, those cases are the politically hot ones, the ones that sometimes you have questions about whether politics has influenced a judicial decision—I think if you create a set of doctrines that enable courts to push back in those circumstances, it’s going to have really poor consequences for the ability just to implement on a day-to-day basis because the lower courts are going to look to those doctrines, and apply them in cases that never make it to the Supreme Court. You never hear about them. But they’re going to feel like, “Look, we cannot get anything done.” And I think that’s inimical to the sort of everyday freedom that Philip talks about in his book.

Howard: Can I just barge in for a second? I agree with everything Nick just said, but I think that can be embodied within a principle. I think the hard-look doctrine implies something that we don’t want. We don’t want courts to be running the environmental agency. We want them to safeguard against abuses of official authority within the environmental agency so that there should be something as Nick suggested like the rational basis test where deference is given as long as the decisions are within the reasonable scope of the official’s authority--in the case of environmental review. And we’ve been drafting and working with some Senate staffers on language that would limit and shorten litigation as a result of environmental reviews. The irony of all the detail to try to avoid litigation is that it promotes litigation. Don Elliott has written about this. The more you uncover every pebble, the more there is for the people who don’t like the project to argue over. And in thousands of pages, you can find countless things to quibble about.

Bagley: Yeah. I tell my students, “It’s never whether the agency has acted arbitrarily and capriciously. It’s how arbitrarily and capriciously has the agency acted.”

Howard: Right.

Levi: We have a very distinguished judge with us here, and she’s been very patiently listening to the arguments of counsel. So, Judge Jones, what are your reflections on this? Because both Nick and Philip see judges as very important to whatever solution they ultimately have for what they see as a really ineffective government right now?

Jones: Well, I don’t think judges are the big solution. We have two problems. One is in regard to many of the employment or school-related problems that Philip talks about is that the Supreme Court back in the ‘60s crafted due process constitutional standards that have made it very, very difficult to fire employees, and that also filtered into the thinking of Congress when it passed laws with very good intentions, such as the Individuals with Disabilities Education Act, that has resulted in extraordinarily disruptive things occurring in classrooms. And I could tell you about the kind of cases that we have had about that. So, you have the Supreme Court creating this overlay about individual rights, which is something that Philip argues very eloquently in his book. You also have, in my view, with regard to Nick, administrative agencies that have taken off in their responsibility in a way that I do not believe was ever foreseen at the dawn of the creation of agencies, the first one of which was the Interstate Commerce Commission.

It is a far cry from regulating rates and services to saying, “We will have a clean environment,” which is essentially what the Clean Water Act and the Clean Air Act say. They’re extremely broad commitments of authority to people, and I would take issue with Nick on this, who do not have authority or political legitimacy behind them, and a lot of what they have created is a superstructure of regulation that feeds into what the kinds of complaints that Philip is talking about.

I have told people. I’ve told audiences on many occasions, “Judges cannot solve these kinds of problems that we see.” And I certainly do agree that administrative legal review is far from perfect that. As Nick criticizes, some of the rules that we are bound by act against the best interests of what regulation ought to be. But at the same time, I think that the ambit of regulation has gone way beyond what the public would be interested in.

I think if you took a plebiscite: “How many people in the United States want to ban gas stoves?” There would be an overwhelming reaction against it. And yet we see regulators right now who are moving to do that. I read the headlines and I see that many household appliances through regulation under extraordinarily broad laws are going to become out of the reach of ordinary people.

And there’s something fundamentally wrong with that. So, I place the burden on Congress to write laws. And if I can just orate one little point further, Philip talks about, and I largely agree with his three principles for the legal system. He says, “Law should set the outer boundaries for human conduct.” I agree with that. Margaret Thatcher said, “Law should be the hedges and everybody should be free to roam around within all of the territory that is not bound by the hedges of law.” I agree that in many cases, principles rather than a formidable rule book should be able to govern conduct. And of course, he also says, “The authority of judges should restored.” Now, we can talk about that a little further. I think that’s separate.

One of my ideas is to start using principled regulation in the environmental area. And just test out my theory here, is it the case that we have to reduce any impurities in water, besides H₂O, down to zero? Regulations were made 30 years ago that provided for clean drinking water, and yet practically every administration in Washington sees they have to ratchet these down. There’s no way that judges can effectively prevent that under the law. And whether you call that activist or whatever, does that make sense?

Suppose instead regulators knew that there’s going to be no significant human damage—I’d go for more of a cost-benefit regulation, environmentally, rather than the term that's about risk. That places minimal risk as a standard and say, “As long as your mercury is five grams in 1,000 gallons of water instead of 1/10 of one gram, there’s no significant risk.” Therefore people can develop the best treatment methods within those kinds of principles. So those are my initial reactions. A) it’s not the courts. B) there’s a lot that modern regulation has gone way beyond in scope of what the law seems to have envisioned, and APA was developed for that earlier model, not what’s going on today. I agree with Philip.

Levi: There’s a high level of agreement among you. I think probably some divergence around maybe some of the examples or some of the implementations. But if maybe I could take the other side from the three of you, just to make this point: if we were sitting here in the 1950s, we would be driving cars that would be a lot less safe and we would be looking at skies that would be a lot less blue, and drinking water that would be a lot more polluted. And when we went out with our kids to try to go to a fishing stream or something like that, we’d probably see a lot of floating dead fish, at least in some parts of the country, where now you would see something very different. So, you could make the case that, “All right, maybe we’ve reached a point of where administrators are less effective, but their record is not bad.”

Howard: Right. I think we’re talking about two different things here. A regulatory system that tries to solve and address externalities, polluted water or whatever, I don't think anybody’s against that. And I think what Judge Jones was saying was that the agencies have taken broad mandates and just run with them with no significant accountability. That’s not a problem of implementation, it’s a problem of policy. They’re making legislative policy. And that’s the objection of many conservatives. And I think, in many respects, they’re correct. I think the problem is that Congress doesn’t exercise oversight. And that’s in part because the Supreme Court said that there must be presentment whenever they want to take away a legislative delegation. So, Congress delegates the authority and when they see the agency overreaching, Congress doesn’t have the authority actually to take it back without the president’s say so. And so I think that’s a problem.

Jones: And that’s part of what Nick talks about because when Congress doesn’t exercise direct responsibility by making law or cutting back funding, they go to what Nick says where every congressional congressperson has a large staff and they stick their fingers directly into the administrative organs with very confusing results.

Howard: Right. But to me, it’s a serious problem with the original design of our constitutional framework. That we've gotten into the 21st century and we’re letting agencies make legislative choices that may or may not make sense without effective congressional oversight.

Levi: I mean is it correct to think you could have such oversight. These agencies deal with so many different issues. Congress would have to have a staff, a gigantic staff, then you’d just have another agency in effect reviewing the work of an agency.

Howard: I was recently doing an event with former Congressman Jim Cooper and former Senator Bob Corker in Tennessee on this. I think if you could create a protocol where you re-empowered congressional committees—where a committee if it decided to amend a law or take away delegation, and certain guidelines were met like 2/3 of the committee voted for it and the minority leader of that House approved it—where there’d be a protocol where all of Congress would automatically vote for it. You could actually delegate authority to committees in Congress to oversee their agencies. And I don’t think it would be impractical. There are not that many rules that are sort of out of left field and they could oversee it. Part of it’s just going back to regular order in Congress instead of having these top-heavy speaker-led things. But we don’t have that now.

I agree that that’s a big problem, but what Nick and I were talking about at the beginning really are problems of implementation. How do you give back to people the bounded authority simply to do their jobs, to give the permit, to run the school, and whatever’s needed to be done? I think that’s less controversial. It’s just making things work.

Levi:  What about Judge Jones’s resistance—which I’ll be candid and say I share— to this central role you seem to give to judges to be moral leaders? I think you say that at some point, the judges need to be the bearers of these can-do values, and then you say that you envision a reconceptualization of the judicial role. They should affirmatively defend boundaries of everyday freedom. So how does that work?

Howard: I’ll say two things. I think it’s different for most federal cases versus most state cases because state cases deal with private disputes and tort law and contract law and such. Federal cases are more federal statutory law and constitutional law. But first of all, law is a concept of boundaries as opposed to determining right and wrong—what Nick and I are talking about with environmental review is not deciding that this project is good for the environment or bad for the environment. We’re not asking the judge to say that. What we are asking the judge to do is to look and see if the decisions by the official had a rational basis, just to throw out an equal protection clause-type analysis. And that’s a much easier thing. It still requires the judge to make a value judgment about whether the decisions by the official had a rational basis for them, but it’s not as hard as asking you to decide the complex trade-offs of wetlands versus somebody else. So, when the judge is deciding outer boundaries, I think that’s one limitation.

In the case of private disputes, I think the tort reformers had it all wrong. It’s not a question of crazy jury verdicts. Most juries are sensible. Most cases don’t even get to a verdict, et cetera. It’s the fact that someone can use a private lawsuit like in an employment dispute or something as a sword of Damocles where people were using state power as a lever over other people.

I’m just going to read something. I was just re-reading it this morning. This is from Cardozo, who was a great common law judge before he went, in the end of his life he went on the Supreme Court, but his reputation was as the chief judge of the New York Court of Appeals. “You may say there’s no assurance that judges will interpret the mores of the day more wisely and truly than other men. I’m not disposed to deny this, but in my view, it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere.”

People need to know where they stand. And so, if there’s a case—the simple case, a kid falls off a seesaw and there’s a lawsuit, or a real case, there’s a sledding accident in Connecticut—if someone can bring a case based on the fact that in hindsight all the precautions weren’t given to avoid any possible accident on this sledding hill, then the effect of that will be whatever the jury decides, the broader effect is towns across the country ban sledding, which in fact happened in that case. The claim by one person made public policy for the entire country, whatever the jury decided. And so, in that situation, I think judges do have to make legal rulings about the boundaries of reasonable risk. What are the acceptable risks of a society?

Jones: I’m going to respond to that in this way. Number one, as federal judge, we do not do an awful lot of tort cases, but we do have the Daubert rule, which has, in my view, proven extremely effective in trying to set some limits on the extremity of claims at least of certain scientific problems underpinning strict liability or whatever.

On the tort side of it though, I took torts from Leon Green who had been the dean of Northwestern back in the ‘30s. He was a youngster of 84 when he taught me torts law, and he was one of the very early legal realists whose theory of tort liability was duty risk analysis, and the job of duty is for the judge. And I’m aware that some theorists and tort law now want to just send everything to the jury. And no doubt, in some courtrooms, they do that. But I think what you’re talking about is having judges take a much more serious approach to duty. And Lord Leonard Hoffmann, for instance, is a good example of that when he was on the Law Lords, as you point out in your book. So, that is a realm in which judges do control the access to the courts.

In other cases, again, the Supreme Court with the Iqbal and Twombly cases, has tried to set rational limits on what can come into federal court. I will say, I will point to a couple of other things just to be provocative. Qualified immunity sets boundaries for public officials in a way that I think you would advocate for the private sector. The rule in qualified immunity is that an official has immunity from a claim of a constitutional violation unless no reasonable officer would’ve done what that person did. Well, qualified immunity is now under great assault among some judges and others, but that does accomplish the goal that you’re suggesting.

Bagley: I think Judge Jones’ point about qualified immunity is really well taken. One thing I noticed in administrative law is that we treat it as strictly about civil law and really about federal agencies and not at all about law enforcement. And if you look in the law enforcement context, we also have doctrines like the Fourth Amendment, like qualified immunity, that work very hard to give officers on the ground enough room to do their jobs. You can like or dislike those rules, but we’re really sensitive to the trade-offs in those domains because we understand that the job is hard. I don’t think we are sensitive to those trade-offs when it comes to routine agency decision-making. And I’d like to see more sensitivity to those trade-offs across the whole field of trying to govern the governors.

Levi: What about this distinction that you and Philip have been drawing between implementation and policymaking? I’m not all that clear on it frankly, and maybe there’s a place where they sort of merge, but I take the point. What’s your perspective on this? Is there too much unsupervised lawmaking, policymaking by the agencies from your point of view?

Bagley: I think at the federal level, all of us would like to see Congress getting into the game more than it does. And Congress’s dysfunction is upstream of a lot of the problems that we’re talking about. I think there’s no question about that. But I can’t wish for Congress to do better. I have to work with the situation that we have. So, is there too much policymaking? I think presidents come under intense pressure to deliver for the people who elect them. This is on the left and the right. It’s not unique to one or the other. And so, they are pushing up against the boundaries of their legal authority in lots of places. And I share some of the concern across the spectrum about that.

But I think the thing that we forget is that the vast majority of what the government does is routine everyday stuff to deliver services to people, to collect taxes, to make sure that this particular waterway is running clear, to do what you can to enforce the environmental laws against some bad actor and some far-flung locale.

Those kinds of actions, again, they don’t usually make the news, but that is the grist of everyday governance. And I think our laws are really poorly attuned, to the trade-offs that administrators face in carrying out their responsibilities in that kind of day-to-day way. And that’s where I’m with Philip and thinking it’s a lot about implementation. A lot of the stuff that agencies do, the vast majority is pretty uncontroversial as a matter of public policy. There are excesses. And Judge Jones is right—there are cases where agencies do things they oughtn’t do. Although I think their track record, as you suggested, David, is actually better than maybe is sometimes understood. Cost-benefit analysis, for example, is now a cornerstone of agency decision-making across the administrative state—Democrat, Republican alike. So yes, there are excesses. But if we focus too much on the excesses, we make it very hard for the day-to-day stuff to actually get done.

Levi: Maybe you should write a little red book like Philip has and call it Everyday Governance.

Bagley: I think Philip might’ve already written most of that book.

Levi: Well then, it’d be easy for you to write it.

Bagley: I do love that he wrote a little red book and I can be a fellow traveler.

Levi: The three of you are really such deep thinkers. That’s the thought that I have. You start with a topic like administrative law and a review of agency action. And to an outsider, it might sound like pretty dull stuff. But then you listen to the three of you, and before you know it, you’re talking about really fundamental questions about the organization of government, the constitutional powers, but also Philip, your book is full of other things that have to do with personhood and trust, and the way in which we interact with one another in a complex society. It gets right to the questions of modernity and alienation and those sorts of things. Your argument is that they have some of their roots, these dysfunctions, these dystopian effects in our legal culture. That’s kind of an aggressive theory. It’s awfully interesting.

Howard: Well, people need agency. They have a psychological need for agency. I work a lot with Jonathan Haidt, he’s a social psychologist, or the late Daniel Kahneman, and I would have the long discussions about this. It was really, really informative to hang out with people who actually study how people feel, and what the sources of their discontent are.

Levi: Any parting thoughts from anyone before we finish up?

Jones: Well, I just went on a tour in honor of D-Day. And if you read up on it, on the origins of World War II, two points come to mind. One of them is that FDR called together a council of the top industrialists at the beginning of the war and said, “We need a machine that can defeat the totalitarian powers.” And within a year or two, the United States ended up producing one aircraft a day, one battleship every month or so, an incredible amount of initiative and energy and productive capacity. Could we do that today if we were challenged, given all the roadblocks that have developed? Number one.

Number two, nothing went right on D-Day at the landing. Men got lost. Their ships got submerged. The beach was strewn with obstacles. They were being fired at. But a few leaders called everybody together. They operated on the spot. They brought together men from different units and they forged ahead. I’m not going to say that the greatest generation is the only great generation, but it is that kind of spirit that we need to encourage and not thwart or tamp down. I think Philip’s book is very helpful about that.

Howard: I have one thought, which is this: there is no organization that has ownership of the issues that we’re talking about right now. No entity. And I think an entity that would be a perfect platform for continuing the discussion to talk about some of the issues, including the boundaries of law and the role of authority within the administrative state and such, I think the ALI is a perfect platform for hosting these discussions. There are a lot of smart people around the country that have looked at this, as Nick has, and it would be extremely interesting to start bringing them together behind these issues.

Levi: Well, we’ve made a good start today. I can’t thank you enough. Each one of you. Thank you, Philip, for writing the book and providing us with the opportunity to discuss it and the themes. Judge Jones, thank you so much for bringing the experience and wisdom that you have to these issues.

And Nick, your article really tees up many of the same issues from a somewhat different point of view, but it’s very powerful the fact that the two of you agree on so much and we should think about that, maybe build on it.

And I take your point, Philip, that maybe the ALI is in a position at least to foster the further discussion of these very interesting questions. This has been a podcast of Reasonably Speaking, a product of The American Law Institute. I’m David Levi. Thank you very much for being with us here today. Thank you.