Howard & Hannah: A Non-Review

I didn’t know how to start this review. I kept going in circles, orbiting around stark definitions, Rube-Goldberg machines, Jonathan Swift and his Laputians. Rubbing my temple, in a row boat with only one oar, my unidirectional turning felt synchronicitous, as I pondered and wrung my hands over how best to surmise Philip K. Howard’s The Rule of Nobody: Saving America From Dead Laws and Broken Government. 

But the answer was there, on the cover, in those tempered but stark words. That’s Hannah for you; a forthright lantern in the darkness. Hannah Arendt, beloved and poignant philosopher and perhaps Patron Saint of all things ‘why.’ I read her book On Violence in my twenties, around the time I discovered whom I’ve come to call “The Erics”, Hoffer and Fromm. So when Howard’s The Rule of Nobody came out in 2015, I was drawn to it, but it sat in my ‘to-read’ list until 2021 this year. 

“The greater the bureaucratization of public life, the greater will be the attraction of violence. In a fully developed bureaucracy there is nobody left with whom one could argue, to whom one could present grievances […]. Bureaucracy is the form of government in which everybody is deprived of political freedom, of the power to act; for the rule by Nobody is not no-rule, and where all are equally powerless we have a tyranny without a tyrant.” These are Hannah’s words. It feels prophetic, considering America’s current volatile state. As a survivor of the Holocaust, her interest in social dynamics and mass movements is self-evident, and her insights into the Human Condition remain stable to this day; however, it was not her philosophical contributions to the human race that first propelled me towards Hannah and in a way, also into her. It was her herself—in her most intimate life—as I first got to know Hannah Arendt through her handwritten correspondences with her dear friend Mary McCarthy. 

This is just the way of me, to do things backwards, to find the willowy fringe of a thing before I grasp its obvious well-known meat. “Mary, darling—” Hannah begins; “Dearest Mary—” she starts again; I would read, and close my eyes and think for a moment, might I be Mary? I knew Hannah initially through her hopes, her heartaches, her annoyances, her loves, her sorrows. So whenever I bump into Hannah Arendt, whether direct or inadvertent, it feels personal. So I struggled over and over to write a review for Philip K. Howard’s impersonal read. 

Getting to know Howard is the opposite of getting to know Hannah—as is fortified by the fact I instinctively use surname ‘Howard’ and first name ‘Hannah.’ (My default functions are showing…) Philip K. Howard writes with brevity, a sturdy head, and though not abrasive the structure of his words speaks to a mind that be-rids the fluff of life and wants to get down to business. Every paragraph has a topic sentence; every logic chain has a beginning and end; no feedback loops or musings; he prefers to talk of things rather than terms; he double-backs only to clarify; he seems not too interested in saving-face if one doesn’t agree. 

It’s refreshing, though sometimes I’d roll my eyes while turning a page. Well, I guess it’s just that easy, ain’t it Howard? So my internal narrator would sometimes harrumph and groan, but all and all, Howard is a man whose thoughts are occupied with solutions, and the executing of those solutions. The minutiae of what is wrong with things is a botheration he would rather not play with. In this light I think we might get along, though maybe only in small doses. 

So The Rule of Nobody is a book of getting on with it: American politics is broken, overrun with bureaucracy and pointless performative partisan politics, and the answer is to say to hell with the endless debates and paper pushing and put actual power back into the hands of citizens and elected officials. Howard is against what he calls “automatic-government.” When everything is dictated by bullet-list laws and impositions, the ability for people to exercise their judgement is lost. The attempted exactitude of law is strangling the flexibility and nuance needed for people to operate in life. Howard, following Arendt’s lead, realizes that when no one has the power to definitively say ‘yes’ or ‘no,’ but everyone has the power to ask someone else to say ‘yes’ or ‘no,’ we have stasis. Everything grinds to a halt. In our desperate zealotry of checks and balances, to make sure that dreaded thing called ‘corruption’ is kept at bay, we tie everyone’s hands. Philip K. Howard’s lesson is candid, and follows the simple idiom: “A man who trusts no one can’t be trusted.” In our paranoia, we have made a quagmire of dead-ends. America is a nation of mistrustful, frustrated souls.

“Between 1969 and 1979 the Federal Register nearly quadrupled in length, expanding not just the scope of regulation, but the granularity of its mandates. Forest rangers used to have guidelines in a pocket pamphlet. Now they had volumes of rules. The purpose of regulation was not to confine executive discretion but to eliminate it altogether. Legal detail replaced public choice. Law would tell you not only what to do, but how to do it. The rhetoric of both liberals and conservatives “converged on the term ‘discretion,’” Professor William Simon observed, “contrast[ing] legality with discretion.’

“Pretty much everyone signed on to the idea of using detailed rules to minimize discretion. Liberals and conservatives like rules, as discussed, because they distrust each other. Corporations like detailed rules because rules provide a safe harbor and, as a bonus, rules are a barrier to entry for potential competitors. Public employees like rules because rules absolve them of responsibility by following the rules, they avoid having to justify the fairness of their decisions. Precise rules were also the sure antidote against violating someone’s rights: The rule made me do it.’ […]

“Out of the cauldron of the 1960s emerged the most amazingly impractical public philosophy ever devised: No one could take responsibility for making public choices. Legal restrictions on official choice now reached its apogee. No president, no judge, no official, no teacher, no anyone, would have authority to draw on their judgement. Public choices would be automatic, like spell-check in a word processing program, or go into the purgatory of perpetual process.”  

Philip K. Howard, from The Rule of Nobody: Saving America From Dead Laws and Broken Government

So here we are, with Arendt’s “tyranny without a tyrant.” There is much that can be argued with in Howard’s book, many oppressions he has glibly overlooked, many depressions he has hastily filled with dirt so he can simply get his wagon down the road without breaking an axle. But deep in its heart, in a chamber that is foundational to Howard’s theory of ‘what is wrong,’ there is something profound. Something that I agree with deeply and have aches and pains over when I am alone in my room at my desk, writing my words, penning my thoughts. 

And it is Hannah.

Portrait of Hannah Arendt via Getty Images

In The Rule of Nobody Howard makes clear the differences between what he describes as ‘principles’ and ‘goals’ vs. ‘rules’ and ‘dictates.’ In the book he uses the Australian reform of nursing homes as an example to get his point across. In 1988 the Australian government made a dramatic shift in its ideas on how to regulate its nursing homes, eliminating hundreds of listed ultra-specific regulations nearly overnight and instead opting for a mere thirty-one broadly stated objectives. Rather than making sure each resident had “at least 80 feet” of private space and check-list edicts of the ilk, new reform insisted on more nonspecific terminology, such as making sure each resident had a “homelike environment” and be treated with “privacy and dignity.” 

The reform was scoffed at, initially, as supposed regulatory experts doubted that such “motherhood statements” could keep residents of nursing homes safe and secure. But in a welcome surprise, Australian nursing homes flourished. Quality of life improved dramatically for residents, less arguments among caretakers and officials ensued, and infighting and bickering broke way into civil debate and collaboration. The conversation of ‘Did you check everything off the list?’ gave way to ‘How best can we serve our residents? In what way can we improve?’ The Australian government had stumbled upon the difference between rules and principles, or what Hannah Arendt described as methods versus aims. 

The human world is chiefly encompassed by two things: the nomothetic, meaning that which is fit for a law-like generalization, and what is perhaps best described by the Hebrew word da’at, meaning something akin to knowledge gained from direct experience with the subject. Both of these do not hold to absolutes, or that without question. One is an open-structure, and one is just plain open. When a system is governed by rules, there is no room for judgement or choices, there is only the letter of the law, and one must follow it religiously, lest one be found astray or out of place. But when we follow principles, or aims, then there is room for voluntary human interaction, for judgment, for choices. Morality, by its nature, can not be automatic. This is Hannah’s greatest epiphany: morality, the goodness of people, can only flourish in an environment where human choices are allowed. This is Philip K. Howard’s kernel of deep wisdom, though it is not his—it is Hannah’s, but Howard is at least wise enough to recognize it.  

In August of 1954 Hannah writes an exhaustibly delicious letter to her dearest friend, Mary McCarthy. Hannah’s mind is a garden here, as she breezily traverses over Socrates and Kant and the French and English traditions of philosophy, in her left hand a cutting scalpel and in her right a delicate paintbrush—in her letters she is both a surgeon and an artist, and Mary’s mind frees her to be herself—it’s compelling. She falls upon the Cartesian doubt, the habitual fear likely born out of the Scientific Revolution where all of humankind’s senses were thrown into the boiling pot of unreliability. This “ritual of doubt,” obsessive and inherent in the west, created what she called a “chief fallacy,” and mused over the possibility that it was perhaps “the oldest fallacy of Western philosophy.” The fallacy is thus:

“The chief fallacy is to believe that Truth is a result which comes at the end of a thought-process. Truth, on the contrary, is always the beginning of a thought; thinking is always result-less. […] Truth, in other words, is not in thought, but […] is both, beginning and priori.”

Hannah here scrapes against something that jars, that moral truth is neither the end result of critical thinking, nor is it inherent in human existence. It is an involvement of what I will simply call the spontaneous life. If Americana is indeed suffering under bureaucratic stifling, beneath what Max Weber coined “the iron cage” and what Howard has opted to see as the “rule of Nobody,” we must shake free the shackles of fear, and cease to perform the ritual of doubt. Either we continue down the path laid out by old men long dead, to keep to the laws as scriptures and maintain the rules purported by faceless policy-writers who bear no responsibility if things go amiss, we can continue to play it safe, and fulfill the duty of stringent due process. 

Or, we can trust and take chances, and bear all consequences.

I negate a star rating for Philip K. Howard’s The Rule of Nobody: Saving America from Dead Laws and Broken Government, as this is not really a book review. I’ll just say I recommend reading it.            

Milquetoasts: Jesse Eisinger Explains Why the Justice Department Fails to Prosecute Executives

If you’re like me, you wonder what happened to the supposed coming convictions of the top bankers from the top firms after the 2008 financial crisis. Not a single person went to prison. The recession was a meteor that slammed into the United States at 13 km per second, creating an upheaval of the financial system and rolling us into a dark hole that at the time felt 6 feet deep. Coming to the aid of the quivering industries, the government tossed out bailouts like a float chucking out candy at the Macy’s Thanksgiving Day Parade. With the malfeasance of the financial firms well documented, and the reek of guilt emanating from every pore, you probably waited just as I did for the prosecutorial gavel to slam down. And oh, we waited—oh did we wait. We waited so long some of us sprouted grey hair and were closing in on grandkids. What was the Justice Department doing? Why the feet dragging? The papers wanted to know, the people wanted to know. When the trickle of deferred prosecution agreements came in, the rage came in too; the Charging Bull was descended upon by millions of confused, angry Americans. One of the largest movements of the current era, Occupy Wall Street, flooded big cities. To put it in everyman terms: People were hopping mad.

Then, par for the course of the modern day, the rage died. The social media feeds moved on, the executives walked scot-free; however, the landscape of America was forever changed.

So what the hell happened? “I waited for the government to charge bankers with criminal wrongdoing. And waited. The indictments never came.” writes Pulitzer Prize winning journalist Jesse Eisinger.

The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives is Jesse Eisinger’s exhaustively researched gamut of just that: Why the indictments never came. Like many of us, the lack of action from the Justice Department nagged at him. Being a journalist, Eisinger began turning over stones. He came to find ( as most things are) the truth to be complex and winding. Even so, one word clearly did stand out in his mind as to why the Justice Department had failed. A fragment in a speech by James Comey, given in 2002 to the criminal division of the Southern District of Manhattan after being appointed the fifty-eighth US attorney by then-President George W. Bush, summed up Eisinger’s feelings perfectly.

The Chickenshits_Cover“Before we read off the box score, I have something to say,” Comey said. “We have a saying around here: We do the right things for the right reasons in the right ways.”

All the assembled prosecutors had heard that exhortation in some variation, from Comey in the hallways or in smaller meetings, and from other chiefs.

Then Comey asked the seated prosecutors a question: “Who here has never had an acquittal or a hung jury? Please raise your hand.”

The go-getters and résumé builders in the office were ready. This group thought themselves the best trial lawyers in the country. Hands shot up.

“Me and my friends have a name for you guys,” Comey said, looking around the room. Backs straightened in preparation for praise. Comey looked at his flock with approbation. “You are members of what we like to call the Chickenshit Club.”

Hands went down faster than they had gone up. Some emitted sheepish laughter.

The aforementioned complex and winding truth, though unable to be boiled down to one concentrated point of fault, could in fact be summarized: ‘Cowardice’, Jesse Eisinger found, plagued the Justice Department. After Comey’s compelling speech, ironically, a trend began. The well-dressed, well-educated, and well-groomed lawyers of the DOJ over and over again failed to bring any charges against executives involved in white-collar crime. As a snail confronted with salt, the department shriveled up. Deference became the norm. No one was willing to bring executives to court for fear that they might lose.

Eisinger has written a good book. The bureaucratic game boards are well laid out, the accounting jargon followable. Eisinger starts at the beginning, building a history, telling the story of when, where, how, and why through a compelling timeline starting around the Enron trials and ending near the dusk of the lackluster Yates memo. The United States government has become more and more pro-business—this is no revelation. What is impressive, however, is Eisinger’s incredibly provocative and detailed report. The pile of evidence he pushes forward is eyebrow raising. What Eisinger presents isn’t just capitalist culture bleeding into government; what Eisinger presents is a full occupation. The Fat Cats have sunk their claws in deep, and our government doesn’t appear eager to shake them off.

The events leading up to the present day milquetoast-ridden DOJ and SEC Eisinger documents in detail. Death in the body politic doesn’t happen with a single thrust; it happens through dozens and dozens of tiny stabs from legalese and lobbying, spins and promotions, bloated incentives and revolving doors. From the 1971 Powell memo, to the debacle of the Arthur Andersen trial, to the “namby-pamby” settlements of AIG and KPMG, to the reversal of the Thompson memo, to the loss of investigative ability within the DOJ and SEC, to the arrival of “the Obamanauts”, to the misguided ruling of Judge Lewis Kaplan and to the ostracism of the corporate boogiemen Stanley Sporkin, Paul Pelletier and Judge Jed Rackoff, the demise of the prosecution was made. A pipeline from big business progeny to esteemed colleges was built; the prosecutorial means in which to pursue investigations were gutted; 9/11 hit, and the resources dried up, sent to the DOD to battle terrorists, both real and imaginary. All these things, compounding through the vastly shifting world landscape, dealt a thousand small blows, and the DOJ went down like a sack of hammers. For the white-collar criminals, it is a Gilded Age. For them, never has there been a more freewheelin’ time to be alive.

To read the newspaper today is to be in a constant state of disappointment. So it is in reading The Chickenshit Club. It is evident the governmental systems that have stood strong for centuries are now becoming relics on a planet that is rapidly evolving. The people and the technologies are outpacing the laws. A surprising statistic: About 91% of all currency exists only in digital form. In Jesse Eisinger’s words, understanding tax fraud is like translating “Aramaic into Mandarin back into English.” The world of white-collar crime can feel so daunting, even to the most well-versed of veterans, but we must keep up. The boom/bust cycle roars on, and so must justice.

Jesse Eisinger has put an important book into the public sphere. Though the plops of dropped balls can still be heard on any given day, there is one good thing to take away: Somewhere there’s a journalist, picking up bread crumbs, turning over stones. Though the Rolls-Royce driving criminals and Windsor knot wearing lawyers might skirt the courts, it’s nice to think that maybe, when they’re at their dining-room tables having morning coffee, they’ll pick up the paper, and see their name printed in black ink, beneath a headline that says something like this:


Official Seal of the Department of Justice. Image Credit: The Department of Justice 

Four out of five stars for Jesse Eisinger’s The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives.