Commonwealth Club: Nicholas Bagley: How Legal Reformers Accidentally Broke America

From the left, right and center, many Americans would agree that American government is broken. The country that built the national highway system and created Social Security and Medicare now seems to barely manage the basics. What went wrong? University of Michigan Law professor Nicholas Bagley argues that the culprit is America’s obsessively legalistic approach to governance―our “procedure fetish.” He says it has strangled progress. Beginning in the late 1960s, reformers concerned about reckless postwar development crafted rules and procedures to minimize social and environmental harm from government action. These reformers had the best of intentions; their obsession, however, has now grown into a legal regime that prioritizes process over outcomes, stasis over progress, and lawsuits over results.  Bagley says it’s time to stop assuming that well-intentioned procedures are good because they’re well-intentioned, and instead to think hard about how to make our institutions genuinely effective. He explores these themes in his book Why We Can’t Have Nice Things, where he offers a potential way forward for addressing what he calls a fatal flaw in American governance.