Think Process, Not Ideology.

• Author: HURWITZ, DAN

In his recent book, Lawns Order, David Friedman, a professor of law at Santa Clara University, reviews a long list of legal matters ranging across fields as diverse as pollution control, contract law, marriage agreements, and criminal law. His observations focus on the contribution that economic principles can make to understanding those subjects, but underlying the observations is a sense that all is not well with the system. The consequences stemming from court decisions and the enactment of statutes have often differed widely from those intended and, indeed, may well have worsened the conditions they were meant to ameliorate. In light of Friedman's libertarian bent, his skepticism is not particularly surprising, but one cannot on that account simply ignore the examples he raises (and carefully documents on his associated Web site) or the generalizations he draws from them.

Less easily dismissed by those of a more liberal persuasion is another recent book by one of their own. In That's Not What We Meant to Do, Steven Gillon, dean of the Honors College at the University of Oklahoma, focuses more narrowly on five pieces of social legislation: the Social Security Act of 1935, the Community Mental Health Act of 1963, the Civil Rights Act of 1964, the Immigration Act of 1965, and the Campaign Finance Reform Act of 1974. Gillon's selectivity notwithstanding, his case histories come to the same bad end as those in Friedman's more sweeping analysis, and Gillon comes to the same conclusion: important and costly legislative acts can fall far short of accomplishing their stated mission. Presuming that our congressional lawmakers are, for the most part, competent and well intentioned, Gillon blames legislative failures largely on the unpredictability of future developments. Hence, he goes on to caution that. hereafter, greater care and humility be exercised in the drafting of legislation.

Obviously, these investigators are not the first who have studied Congress's out put and found it wanting. How many times, for example, have partisans assured us that if only our laws were made more liberal or, conversely, more conservative, then all would be well? According to others, what is needed is that we limit legislation to far fewer areas; Congress need concern itself only with national defense and the protection of life, liberty, and property. Still others insist that no formulaic solution will help until we find ways of attracting higher-caliber candidates to political careers. Granted that each of these remedies would have an impact on future legislation, experience has taught us, I submit, that none of them is capable of fundamentally changing the quandary that gave rise to the two books I have cited.

The plain fact is that we are stuck with a government of laws created by imperfect lawmakers who, to one degree or another, are bound to be inadequately informed, short of omniscience, questionably motivated, and as capricious as the voters they represent. However much representatives in some idealized, unattainable circumstances might prefer to act in the commonweal, reality dictates that their first priority be to ensure their own reelection and their second to strengthen the position of their party. Granted, in propitious times, all three interests may coincide; usually they do not. And insofar as the scale of mischief making in Washington is concerned, in addition to the five examples Gillon selected, one could readily identify another fifty--or five hundred, for that matter. The question remains, then, What, if anything, can be done about it?

A more productive approach would be to focus less on who makes our laws and more on how those laws are made--to strive, in other words, for an improvement in the lawmaking process itself. And a good starting point would be to acknowledge that, given the restraints already noted, the bulk of new legislation is certain to be ill-conceived. If this admission seems a bit startling, we might well admit that it is, after all, only consistent with everyday experience in other areas. What proportion of new product introductions is commercially successful? How many patents actually result in products placed on the market? How many books receive a second printing? And, finally, we have to ask, Does this recognition of the inevitability of ill-conceived legislation lead straight to a demand that Congress take an extended leave of absence and that the doors to the Capitol be slammed shut? Not necessarily. All laws successful making it through the legislature are in response to pressures of one sort or another emanating from the body politic, whether the source of that pressure be an aroused citizenry, a crafty lobbyist, a vocal association, a particularly dedicated minority, a sleazy attorney, or someone else. Just as surely as most laws are likely to be counter-productive, some small minority are probably well directed. In this light, the problem becomes one of selection. How do we see to it that bad laws die and good laws live on to benefit society? Put another way, what can we do to ensure the survival of the fittest legislative experiments?

Expressed in this...