Fear of Discretion

Abstract

As its title suggests, The Death of Common Sense is a book with a simple and straightforward message: Our society's reliance on law is excessive, misbegotten, and possibly fatal. The subtitle of the book is "How Law is Suffocating America." Indeed this missive does leave the reader at least worried, if not convinced, that modern law is an asphyxiating smog. An asphyxiating smog that is stifling our society's creative energies and poisoning our public processes - because it is too detailed, too procedurally rigid, and too dependent on creation of new legal rights as the solution to policy ills.