The Age of the Technicality; C. Carson

The Age of the Technicality CLARENCE B. CARSON T. S. ELIOT said on one occasion that our civilization would end not with a bang but with a whimper. This was not so much a prediction or prophecy as it was a pithy commentary on a prom inent characteristic of our era. But if it be taken as prediction, there is something lacking in it. It does not tell us how the end is likely to come, does not fill in any of the details of the coming anemic apocalypse. There is now mount ing evidence, however, of how at least American civilization may end. It may come about in some such fashion as this. At some time in the not too dis tant future the American produc tive machinery could grind to a creaking halt, be still and remain Dr. Carson has written and taught extensively, specializing in American intellectual history. His most recent book, The Rebirth of Liberty (1973), covers the founding of the American Republic from 1760 to 1800.

1RH silent. There would be no farmers in the field, planting, tilling, or harvesting, no workers in the mills, mines, or factories, no clerks in the stores, service stations, or banks, no policemen on the beat, no ball players in the arenas, no soldiers at drill, nor anyone any where doing anything that could be described as productive. Where would they be? What would be occupying their time? How could this have happened? Let the answers to these ques tions wait a bit, and let us ex amine some clues as to what could bring about such a state of affairs. The following are excerpts from items which appeared on the pages of a single edition of a morning newspaper, the Atlanta Constitu tion, November 25, 1975. I tem One: A former secretary to Fulton County Commission Vice 1976 THE AGE OF THE TECHNICALITY 139 Chairman ... testified during a hear ing on the appeal of her firing Mon day that she had "intimate rela tions" with the commissioner.

The three-member Fulton County personnel board is expected to de cide Tuesday whether the secretary ... will be reinstated. Item Two: The DeKalb County school system has come into com pliance with federal law by no long er forcing married or pregnant stu dents to participate in a special edu cational program, a school adminis trator announced Monday .... That law, Title IX of the Educa tional Amendments of 1972, states that female students cannot be dis criminated against for any reason .... He also denied that a recent com plaint from the husband of a former Towers High School student caused the school system to hurry the pol icy change. "We had almost come to a con clusion," he said, when a man iden tified by school officials as Bill Mac Arthur received some publicity and threatened to file suit. MacArthur alleged his wife was being discrim inated against when she was forced to leave Towers and 'attend open campus.

Item Three: A group of determined Washington Redskins fans who are also lawyers filed a suit Monday against the National Football League stemming from the contro versial Mel Gray touchdown recep·· tion. The group is asking U. S. District Court Judge George L. Hart to is sue a temporary restraining order preventing any scheduling of play off games until the court makes a ruling on a controversial call that went against the Redskins in Wash ington's overtime loss to St. Louis two Sundays ago. According to one of the complain ants, George Morse, the suit asks Hart to either have the teams finish the game from the point just prior to the controversial St. Louis touch down pass, or to call the game "no contest" and figure precentage points in the standings as if it were a tie. Item Four (a quotation from a pris on warden) : "It seems like we never get a final conviction on anything any more. After all appeals are ex hausted arising out of the original trial, we go into the habeas corpus process all over again. I have an administrative assistant who is in court today. His job was set up to assist me, but he spends 95 per cent of his time in court on habeas corpus hearings .... "

Item Five: The Atlanta chapter of the American Institute of Archi tects (AlA) is peeved that Mayor Maynard Jackson has not replied in two weeks to its recommendations on minority participation in city architectural projects. In October Jackson requested for mation of an AlA liaison commit tee to make such recommendations, 140 THE FREEMAN Mar'ch chapter President M. Garland Rey nolds said Monday .... The AlA spent several weeks meeting with other groups in coming up with its recommendations, Rey nolds said. Reynolds' Nov. 10 letter to the mayor was prompted by Jackson's insistence earlier this year that mi norities be given a part of the con tract for architectural and engineer ing work for the planned expansion of Hartsfield International Airport. Item Six (involves promotions of po lice officers in the City of Atlanta, the oral examination used, the-Fra ternal Order of Police (FOP), and the Afro-American Patrolman's League.): Complaints against the new exam centered on the nebulous nature of the orals, which included 10 questions based on hypothetical situations. The judgment of good and bad answers was left to the interview boards. Both for sergeant and cap tain the boards were made up of two white and two black superior officers, plus an attorney .... A variety of attorneys was used, and most of them were black.

The issue of using more than one attorney on each board is part of the basis for a legal challenge of the new exam as that challenge is being pre pared for court filing by attorneys for the FOP. The-lawyers contend the city ordinance authorizing pro motional testing specifies that one lawyer be used, rather than a suc cession of lawyers, so that each can didate is interviewed by the same board. Item Seven: MARTA [Metropolitan Atlanta Rapid Transit Authority] is opposing an application before the Georgia Public Service Commission (PSC) to establish a van service in the metropolitan Atlanta area. The rapid transit authority op poses such service because it could increase competition in the lucrative charter bus market .... MARTA also objects to the appli cation . . . because under federal rapid transit funding laws, MARTA could be required to purchase the private company if the company could prove that MARTA's tax-sup ported transit operation competed unfairly.

Item Eight: Inmates who seized five guards as hostages and holed up in five cell blocks at a city prison on an islan"d in the East River released the three remaining hostages Monday on the promise they would not be prose cuted. The promise of amnesty so ang ered the guards at the Rikers Island jail that about 300 of them immedi ately stormed off the job. . . . Finally, a spokesman for mayor Abraham Beame said the guards agreed to go back to work when Beame promised to meet Tuesday afternoon with Harold Taylor, presi dent of the guards' Benevolent Asso ciation, on the matter. There were other items in the same paper that might have been quoted. One described a malprac tice suit in Augusta, Georgia 1976 THE AGE OF THE TECHNICALITY 141 which had been one of the longest in Georgia history. Another told how a local government budget was discarded hecause the respon sibility for preparing the budget had been shifted to another offi cial. But ,enough examples have been given to show a general trend, of sorts.

Common Characteristics There are some common threads running through all these inci dents. One is that they all involve government at one level or another and in one way or another. A sec ond is that all of them involve some sort of proceeding: a report of a liaison committee, a lawsuit, a habeas corpus hearing, a school board ruling, a Personnel Board investigation, an application be fore the Public Service Commis sion, and a conference between a mayor and a represen tati ve of prison guards. Above all, however, they all in volve one or more technicalities: whether a football player held a pass long enough for it to be a completion, the claim of a secre tary that she had "intimate rela tions" with a commissioner which led to her firing, opposition to a local van service because of the intricacies of a Federal rule, whether there should have been only one attorney sitting in on all the tests or several, the endless appeals made by those who have been convicted and sent to prison, whether married students should be sent to a special campus, and so on.

According to many who make such characterizations, we live in an age of technology. There is no gainsaying that this view has much to support it. If technology be understood to include the me chanical and electronic devices by which we sort, sift, stuff, open, move, inspect, light, heat, cool, start, stop, weigh, measure, pour, record, and perform the myriad acts which can be done in this fashion then our age is certainly in some respects a technological one. Such characterizations, of course, always vie with others which may he equally apt, such as, the age of steel, the age of elec tricity, the age of antibiotics, and so on. However appropriate any or all of these may be, we have moved unwittingly into a. new age, the Age of the Technicality. The signs abound that marie and more ruling bodies are spending more and more of their time and that of the citi zenry in applying these technicali ties to the warp and woof of our lives. It may not happen that way, but it looks as if it could. At some time in the future the whole adult population of the country and most of the children could be tied 142 THE FREEMAN March up in hearings, 'Consultations, con ferences, lawsuits, proceedings, and what not before courts, com missions, boards, bureaus, agen cies, and the like, brought by ten million whimperers based upon technicalities.

What is more likely, if the trend continues, is that more and more of the population will have more and more of their energies dis sipated in these undertakings to the point that the necessary useful work is no longer performed. The whimper with which American civilization may ,end will be that of the-one-too-many 'Complainants, the straw that breaks the camel's hack. At any rate, we are certainly in the 'midst of an age of technicali ties. Anyone who doubts this should examine the evidence around him with more care. As this piece was being written, the mail brought an 'excellent example of such technicalities, a "State ment of Fair Credit Billing Rights," as presented by Sears, Roebuck and Company. Since any one who has a credit card probably received one of these, it may be useful only to pres'ent excerpts 'and highlights from this wondrous set of instructions: The Federal Truth in Lending Act requires prompt correction of billing mistakes.

1. If you want to preserve your rights under the Act, here's what to do if you think your bill is wrong or if you need more information about an item on your bill: a. Do not write on the bill. On a separate sheet of paper write (you may telephone your inquiry but doing so will not preserve your rights under this law) the follow ing: i. Your name and account num ber. ii. A description of the error and an explanation (to the extent you can explain) why you be lieve it is an error .... iii. The dollar amount of the sus pected error. . . . b. Send your billing error notice to the address on your bill .... Mail it as soon as you can, but in any case, early enough to reach Sears within 60 days after the bill was mailed to you. 2. Sears must acknowledge all let ters pointing out possible errors within 30 days of receipt, unless we are able to correct your bill during that 30 days. Within 90 days after receiving your letter, we must either correct the error or explain why we believe the bill was correct ....

3. After we have been notified, neither Sears nor an attorney nor a collection agency may send you col lection letters or take other collec tion action with respect to the amount in dispute .... 4. If it is determined that Sears had made a mistake on your bill, you will not have to pay any FINANCE 1976 THE AGE OF THE TECHNICALITY 143 CHARGES on any disputed amount. If it turns out that we did not make an error, you may have to pay FI NANCE CHARGES on the amount in dispute .... 5. If our explanation does not satisfy you and you notify us in writing within 10 days that you still refuse to pay the disputed amount, we may report you to credit bureaus .... But Sears must also report that you think you do not owe the money, and we must let you know to whom such re ports were made. . . . 6. If Sears does hot follow these rules, we are not allowed to collect the first $50 of the disputed amount and FINANCE CHARGES, even if the bill turns Ollt to be correct ....

This monstrosity is a technicali tarian's (if I may coin a word) dream. It requires little imagina tion to guess the disputes that could arise over technicalities in volved in these rules. For exampl,e, which period would be running at any given time: the 10 days, 30 days, 60 days, or 90 days? Who decides whether an ,explanation is adequate, or whether the customer or the creditor has complied with all the rules? Do Sundays and holidays count? Suppose the cus tomer only ow'es $10 when the dis pute arises but that he subse quently charges $40 more. Sup pose the creditor has made a mis take, or has not followed the rules. What is the total amount to be allowed the custom,er under the $50 rule? The possibilities for con tentions are almost unlimited. Even a Philadelphia lawyer would be able to work his way through such a maze only with the greatest difficulty. The above is not an isolated in stance of government intrusion into our lives with intricate tech nicalities. Nor does it contain the most obtuse examples of detailed rules which have to be followed.

In fact, these rules are fairly sim ple compared with some that have been promulgated. In the last sev eral years the federal government has initiated technicalities with more comprehensive application than ever before. Several new agencies have been set up, each of which promulgates rules for virtually every private undertak ing in the country. The OSHA One of these is the Occupational Safety and Health Administration, authorized by act of Congress in late 1970. Its rules apply to vir tually all businesses "affecting" interstate commerce, which nowa days means nearly all of them. By June 17, 1974, its "Safety and Health Standards" ran to 326 triple-columned 81j2 x 11 pages in a tiny print that will assure eye strain to readers. A little examina tion of some of these "standards" will illustrate the lengths to 144 THE FREEMAN Ma,rch which they have gone in estab lishing technicalities.

Here are the rules for "Ladders, Fixed" as they appear in a hand book which abridges them for general industry: a. All fixed ladders shall be designed for a minimum concentrated live load of 200 pounds. b. All rungs shall have a minimum diameter of %- inch, if metal, or llh inches, if wood. They shall be a mini mum of 16 inches in clear length and be spaced uniformly no more than 12 inches apart. c. Metal ladders shall be painted or trea ted to resist corrosion or rusting when the location demands. d. Cages, wells, or ladder safety de vices for ladders affixed to towers, watertanks, or chimneys shall be provided on all ladders more than 20 feet long. Landing platforms shall be provided each 30 feet of length, ex cept where no cage is provided, land ing platforms shall be provided for every 20 feet of length. e. Tops of cages on fixed ladders shall extend 42 inches above top of landing, unless other acceptable pro tection is provided, and the bottom of the cage shall be not less than 7 feet nor more than 8 feet above the base of the ladder.

f. Side rails shall extend 3% feet above the landing. The following are some rules for trenching: (a) Banks more than 5 feet high shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins .... (b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise support ed by means of sufficient strength to protect the employees working with them .... (c) Sides of trenches in hard or compact soil, including embank ments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring! the sides of the trench above the 5 foot level may be sloped to preclude collapse, but shall not be steeper than a I-foot rise to each 1J2-foot hori zontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the' sloped portion.

Civil penalties for the violation of these and other such rules can run to as much as $1,000 per day for failure to comply after a. cita tion has been issued. Criminal penalties can go as high as $20,000 fine and one, year in prison. An Equal Employment Oppor tun'ity Act was passed in 1972. It authorized an Equal Employment Opportunity Commission (EEOC) and prohibited discrimination on the basis of sex, color, religion, or national origin in their hiring practices by most employers of 15 1976 THE AGE OF THE TECHNICALITY 145 or more persons. The Commission focused upon promoting "affirma tive action," Le., discrimination in favor of minorities and the "gent ler" sex, and such things as adver tising and testing. Their regula tions on sex include some of their more tortured reasoning. For ex ample: (a) The Commission has deter mined that an employer's rule which forbids or restricts the employnlent of married women and which is not applicable to married men is a dis crimination based on sex prohibited by Title VII of the Civil Rights Act.

It does not seem to us relevant that the rule is not directed against all females, but only against married females, for so long as sex is a fac tor in the application of the rule, such application involves a discrim ination based on sex. (b ) It may be that under certain circumstances, such a rule could be justified within the meaning of Sec tion 703 (e) (1) of Title VII. We express no opinion on this question at this time except to point out that sex as a bona fide occupational quali fication nlust be justified in terms of the peculiar requirements of the particular job and not on the basis of a generaI principle such as the desirability of spreading work. What follows is the Commis sion's view of what can appear on a job application form as it may refer to sex: A pre-employment inquiry may ask "Male.. . .., Female "; or "Mr., Mrs., Miss," provided that the inquiry is made in good faith for a non-discriminatory purpose. Any pre-employment inquiry in connec tion with prospective employment which expresses directly or indirect ly any limitation, specification or dis crimination as to sex shall he unlaw ful unless based upon a bona fide oc cupational qualification.

About the only "bona fide occupa tional qualification" based on sex which the Commission has rec ognized is in acting, where a male or female is being portrayed. Environmental Protection The Environmental Protection Agency (EPA) was set up in 1970 following a great hullabaloo about the environment. Its goa.l is to establish and maintain harmony between man and his environment, a rather tall order even for a gov ernment agency. To this end, ac cording to an information sheet issued by it, "The Agency sets and maintains air and water pol lution standards, regulates the sale and use of pesticides, sets standards for noise and ambient radiation, develops techniques and procedures for solid waste man agenlent, studies toxic substances, conducts research, and demon strates new pollution control meth ods and teehnology." Since every 146 THE FREEMAN March act of man does, in some way, affect the environment, it is fairly safe to say that so long as it has the momentum behind it, this agency will spread its umbrella to cover more and more activities.

The Age of the Technicality, then, is upon us. Moderns have sometimes been amused by the tales of the intricate debates of scholars in the Late Middle Ages under the sway of scholasticism. But one wonders what a Duns Scotus (a medieval scholar whose name gave rise to the term "dunce" because of the meticulous ness of his analyses) would think of our efforts to determine whether or not the reference to sex in an application form was made in good faith or not, at what point the decibel emission from some machine contributed signifi cantly to noise pollution, what amount a bank over five feet should slope every lh-foot, and so on. Whether 10,000 angels could dance on the head of a pin might not have been a very good ques tion but whether 200,000,000 Americans can survive 10,000,000 regulations is. The Age of the Technicality has been fostered, no doubt, by a num ber of trends and developments. We have been bent during the Modern Era toward precise quantification and the development of tools and instruments for doing it. Technology has spawned techniques for turning problems into tech nicalities. The courts have wel comed an ever larger number of cases which hinge on technica1i ties. There are many interested parties - such as technicians, sci entists, lawyers, and bureaucrats - who benefit from the focus on technicalities. Above all, however, we have been thrust into the Age of the Technicality by the deter mination to use government to force us to do what some believe to be good and right. The result is the politicalization of life, and drastic decline in choice and free dom for the individual.

Forced to be Good? It is no part of the purpose of this article to enter into the question of whether any of the objects sought by the myriad rules and regulations are good and de sirable. There are many things it might be good for us to do. It might be good if each of us at tended church every Sunday. It might be good if we all had the same basic beliefs. It might be good if each of us had a balanced diet, exercised at regular intervals, and consumed only the blandest of food and drink. It does not follow, of course, that if or because it would be good we should then turn to gov ernment to force everyone to do 1976 THE AGE OF THE TECHNICALITY 147 any or all of these things. It does follow, however, that if we turn to government to make us do what is good and right we shall have complex laws, intricate rules and regulations, bounteous litigation. numerous hearings, expanding bu reaus, and lives entangled in more and more technicalities. It follows that more and more of our time and energy will be devoted to en forcing and complying with and contesting these technicalities.

There are deeper dimensions, as already implied, to these efforts to make people do good by law. When we are compelled to do good by government, no virtue at taches to our doing it; it is only expedient for us to comply with the law. Not only does this reduce the moral dimensions of our Iives but also compulsion breeds re sentment and resistance which produces a perverse pleasure in evasion and in sabotaging the effort. A breach occurs between the governors and the governed, a breach which can widen into a gulf. A finicky government invites the contempt of the citizenry. A populace whimpering over viola tions of technicalities invites the contempt of each for all. The min ute intrusions upon liberty tend to foster a contempt for life itself. Can one, after all, imagine George Washington a.nd his men suffering at Valley Forge in defense of our "Fair Credit Billing Rights"? If such had been their object, they might better have surrendered, retained the connec tion with England, and got the legislation a little sooner under the Labour government. The tyranny of technicalities is tyranny, but it is oh such petty tyranny that a man must grasp its whole impact before he sees it as worthy of his opposition.

Step by Step We have fallen under this tyranny of technicalities bit by bit and step by step, though in recent years the pace of their im position has increased rather rap idly. The method of those who have sought their imposition has been to focus upon some real or imagined problem, to propose its solution by way of some Federal program, to enact a law, and to set up some regulatory agency. At first, such agencies usually dealt with some particular busi ness: railroads, banks (the kind in whieh money is deposited), labor unions, and··trusts. Over the years, more and more institutions and activities have come under such regulation, and now omnibus agencies - such as, EPA, OSHA, and EEOC - are being created. Opposition to individual impo sitions has often been difficult to' mount; the stated object often had 148 THE FREEMAN March broad appeal, and it is often pre carious to oppose what is per ceived to be good. The result has been that we have come into the Age of the Technicality so gradu ally that it would be difficult to determine when we arrived.

It is fairly clear, however, that the Age of the Technicality can not be brought to an end either by opposing the creation of any more such agencies or by elimi nating the abuses in the existing ones. There are already enough agencies with sufficient impetus to entangle us interminably in tech nicalities. It is not the abuses which pose the greatest threat but the resolute carrying out of what has been authorized. The effective level of opposition fi nally is at the level of principle. Is Government the Right Tool? The development needs to be grasped whole, its impact on the economy and on our lives seen for what it is, and opposition made to the attempt to force us to be good by law. Any other approach falls into debates over such things as whether or not women should have equal pay for the same work as men. That must not be the is sue. The issue - regardless of rate of pay - is whether government is the proper instrument to impose it.

The issue may be brought into focus for us better if we imagine that the men who predominate in the legislature should decide that women should be paid, say, ten per cent less than men for the same work. But, it may be ob jected, that would be unjust. So it would, and so is a government decree that women should be paid the same. Government is in no po sition to determine the value of an employee; only an employer can do that, and justice requires that he pay an employee what he is worth to him. Those who are con cerned about government prevent ing pollution need to understand that they are also talking about government authodzing some lev el of pollution. Virtually all the technicalities with which we are embroiled have to do with the conditions under which that which is prohibited is allowed, or that which is allowed is prohibited. Protect the Individual to Do the Best He Can The Age of the Technicality is not, itself, the age of safety and health. It is the age of the endless hearings, debate, and litigation over the degree of safety, health, and whatever. The principle on which it can be foreclosed is that government should attend to its tasks of protecting us from wrong and leave to us the business of do ing good. When it does so, it will not need commissions, hoards, 1976 THE AGE OF THE TECHNICALITY 149 agencies, and bureaus to interpret and impose myriad rules and regulations. These exist to permit what the legislature knows it should not prohibit but can dis cover no principle by which it can be allowed within the framework of law. That is reason enough for government not to be involved.

The tyranny of the technicality will end when enough people realize that the legislation which has authorized it should be revoked. Until that happens, however, we should all hope that to some degree we live in an age of technology, for in the Age of ,the Technicality men will be increasingly too en tangled in technicalities to do any thing else much. Machines will have to do most of the work, if it is to be done. ~ AN ANCIENT FABLE RETOLD W. A. PATON REFERENCES to the proverb asso ciated with the fable I propose to relate are not especially rare, but I have been unable to find the old tale itself in print, anywhere. The story was told to me back in 1913, either by Professor Fred M. Taylor, my revered mentor in eco nomics, or Walton H. Hamilton, one of his corps of assistants in the basic course in principles. Since I'm reasonably sure that few - if any - of the present-day teachers of economics are familiar with the w. A. Paton is Professor Emeritus of Account ing and Economics, University of Michigan.