Life Without Lawyers: Liberating Americans from Too Much Law
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How to restore the can-do spirit that made America great, from the author of the best-selling The Death of Common Sense. Americans are losing the freedom to make sense of daily choicesí¬teachers can't maintain order in the classroom, managers are trained to avoid candor, schools ban the game of tag, and companies plaster inane warnings on everything: "Remove Baby Before Folding Stroller."
Philip K. Howard's urgent and elegant argument is full of examples, often darkly humorous. He describes the historical and cultural forces that led to this mess, and he lays out the basic shift in approach needed to fix it. Today we are flooded with rules and legal threats that prevent us from taking responsibility and using our common sense. We must rebuild boundaries of law that affirmatively protect an open field of freedom. The stories here will ring true to every reader. The analysis is powerful, and the solution unavoidable. What's at stake, Howard explains in this seminal book, is the vitality of American culture.
Smart critique of lawsuit-fearing America but the problem is deeper Philip K. Howard is a sharp insider with an uncanny ability to show, in simple terms, why Americans feel suffocated by the legal system. For years we've been caught in the brambles of complex rulings, fearful of possible lawsuits, and unable to see our way out of the thicket. Perhaps it takes an astute lawyer like Mr. Howard to reveal what's wrong with the legal forest and show us a way out.
Americans tiptoe through law all day long. Teachers no longer have authority to run their classrooms -- they're afraid to remove a disruptive student lest they run into a morass of legal procedures. Suspending a disorderly student for a few days can trigger dozens of legal steps. Parents are afraid to go on field trips lest they be sued. He writes "legal fears constantly divert us from doing what we think is right". Teachers can't touch kindergartners lest they be punished as child molesters. So many rules entangle student-teacher relations that it practically requires a law degree to understand them all. Teachers are subjected to horrendous paperwork overload to cope with numerous regulations as well as frequent loudspeaker interruptions. The "No Child Left Behind Act" has proven to be a huge pain for educators.
To cope with runaway litigiousness, people adopt a defensive stance, not thinking of doing what's right, but trying their best to follow procedures step by step to avoid possible punishment. The accusation "you took a risk" is enough for lawyers and courts to nail you. So everybody tries to cross every "t" and dot every "i".
But risk is a big part of life, argues Mr. Howard. It's what makes playgrounds fun. And in a search for perfect safety, one can't limit risk entirely. If one child breaks an arm on a jungle gym, then a response of dismantling all playgrounds increases the overall risk that children won't get enough exercise. This happens today. There's an epidemic of obese children. Playgrounds are shut down. The key is not to avoid risk entirely but manage it with judgment calls about trade-offs, and reasonable assessments of the chances of risk. Risks must be weighed against benefits. And it's unfair to let the injured set the agenda on risk for society as a whole, and his critique is intelligent and smart.
His thinking agrees with my thinking of rights. I see a right as a sphere of possible future action acknowledged by others. Law is a boundary between these spheres. Ideally these boundaries are drawn to let people have the largest possible spheres of future action with clearly defined boundary lines. But today a few victims set the agenda for everybody. Zealous special education parents can wreak havoc with the school board, threatening legal action. The net effect is diminished bubbles of freedom, because we're never certain our actions won't subject us to a possible lawsuit.
In my life I've dumped activities for fear of legal consequences. I quit coaching. I avoided my church's call to help under-privileged youngsters learn to read. I avoid any conversation with young people lest it turn out they're under-age. Why? I'm afraid of being sued or being treated as a pervert. But society is not better off when such choices are made. Everybody suffers. Mr. Howard writes "the possibility of an accusation has put normal adult-child relations in a kind of deep freeze". All it takes is one misunderstanding, one pointed finger, and my life could have been turned upside down. At one point I decided against expanding my market research business because of perceived difficulty navigating rules & procedures & tax requirements & discrimination laws -- it was simpler, safer, easier remaining a sole proprietor. The legal system constrains me; it doesn't empower me. And I didn't help grow the American economy.
In contrast, Britain gets it right. A Mr. Tomlinson was injured while swimming, sued, but an appellate court dismissed the case reasoning that "permitting Mr. Tomlinson's claim...would encourage this and other parks to restrict access to normal and healthy activities, affecting the enjoyment of countless people". It was a question of freedom. The risk of accidents is no reason for imposing a "grey and dull safety regime on everyone", according to the British judges.
As long as Mr. Howard keeps his analysis within the legal world, his critique is sharp and useful. But in later chapters he swims into deeper waters by criticizing Washington, and doesn't fully understand the currents, and splashes about somewhat. He doesn't understand the broader problems of American politics making some of his solutions a touch naive, although well-meaning. He's well read, delving into thinkers such as John Rawls and Ronald Dworkin and Tocqueville. I doubt he read Habermas. Still, like most thinkers today, he misses a bigger picture of the decline of American citizenship and democracy. What tipped me off was when he wrote that civil liberties are "generally alive and well", and I differ with him substantially about this. I doubt he's read Ginsberg's "The American Lie" or Dana D. Nelson's excellent "Bad for Democracy" and I am 99% sure he hasn't read my book (below) so I don't think he gets how corrupt and rotted American democracy is. Still, he's definitely grasped a piece of the puzzle which I missed, and I congratulate him; if I rewrite my book, I will include his insights.
He sees two undercurrents: (1) a drive to focus on systemic productivity (stimulated in part by business consultants such as Frederick W. Taylor) which began in the 1900s which caused people to want detailed instructions on how exactly to get things done (which led to legalistic step-by-step instructions for doing many things) and (2) an expanded idea of individual rights which began in the sixties in which "any individual who feels aggrieved (can) bring a legal claim for almost anything". The latter trend empowered complainers. I agree these trends are partially responsible for the current mess, but in my view there are more powerful currents subverting America. These include a decline in citizen participation in government at the local level, a push for partisanship, a hunger for money and wealth, along with Tocqueville's "equality of conditions", and these factors have interacted in cause-and-effect relations to build a powerhouse economy but with practically no citizen involvement in self-governance. Mr. Howard thinks Americans can't stand "the idea of people making decisions that affect other people"; I think the problem is deeper. He thinks liberals want expanded rights while conservatives distrust authority, and both are working at the edges to promote a distorted legal culture; I agree, but I think partisanship is a much bigger problem that can only be contained in a truly federal structure.
Mr. Howard offers smart fixes when he sticks to the legal world but wobbly fixes when he aims higher, such as at Washington. The principle undergirding smart fixes should be to enable decision makers to decide what's best on the spot -- an excellent recommendation. Decision makers need to be freed from complex rules which can never substitute for human judgment. So a teacher on the spot can decide to remove a disorderly student without fear of lawsuits or being fired; a principal can do the same. And a committee can oversee such decisions. But such decisions should not be subject to legal wrangling or second-guessing by lawyers and judges; rather, the authorities should be empowered to make decisions, and this frees everybody and leads to much better decision making, and he's right. Mr. Howard acknowledges that mistakes will be made, but I agree with him that his proposed arrangement is much superior to the present one. And Mr. Howard believes in the idea of oversight, so a standard-setting body can outline the general principles of fairness without trying to do the impossible task of specifying in legal terms how to handle every possible situation.
Mr. Howard urges legislators to encourage nonpartisan standard-setting bodies to draw fair boundary lines. Standards enjoy broad support and are considered as authoritative by courts, he argues. Such standards could help judges decide that frivolous lawsuits could properly be dismissed. He urges legislators to revise statutes so officials have responsibility to make decisions, and to avoid situations when particular matters are resolved in law courts. Further, he believes judges should be more active in investigating whether certain cases deserve to come to trial; he cited a case in which a judge investigated a class action involving supposed silicosis poisoning, found the case was fraudulent, and properly dismissed it. He urges the Supreme Court to abandon the due process model for social services, writing "daily choices in schools (should) have no constitutional overlay". Ideally, legislators and judges must draw legal boundaries. When people can sue almost anybody for any reason, he writes, "law becomes a weapon of state power instead of a protection against state power". He wants legislators to empower judges to "consider the potential effects of claims on society at large". And he prefers special courts to handle areas requiring special expertise, particularly for medical malpractice cases.
He prefers accountability in public employment. When civil service employees mindlessly follow directives and don't make decisions, the organization suffers. Because of due process, civil service protections, and union contracts, public workers have a "virtually impregnable position". They can't be fired. Bureaucracy expands. They have considerable political power. We need the freedom to judge others; failure can be a liberating event (as he mentioned from his own life). Let a designated decider or committee review termination decisions, and overturn them if necessary; but it shouldn't be a matter for courts. Sexual harassment claims must rise to a level of quid quo pro, not just lewd remarks, before being subject to litigation. He likes mediation.
Generally, these are excellent suggestions.
But when he critiques Washington, he's less sharp although pointed in the right direction. What causes the disconnect between Americans and Washington? He blames too much law: "Washington has slowly sunk into an ocean of law, rules, and processes". While he's generally right, I think the failures are deeper, systemic, structural. He pushes for a "national coalition of citizen leaders to propose an overhaul of government"; well, I don't think Americans are citizens any more. He thinks special interests do not run Congress (I disagree) but thinks they exert a hammerlock of inertia on the status quo (I agree). Mr. Howard thinks a Constitutional Convention is not necessary but "just a healthy spring cleaning"; I disagree with him 100% here. I think it's the ONLY way to repair America; what Mr. Howard offers to fix Washington in my view is only wishful thinking.
As a private citizen, I am summoning America's leading thinkers to Independence Hall in Philadelphia, beginning July 4th, 2009, to craft a revised Constitution, based on the old one, which (1) restores citizenship as a meaningful relation between people and the state, and between people, with specific responsibilities and privileges (Mr. Howard writes "citizenship requires active involvement in the community" and I agree) (2) prevents tyranny, terrorism, and crime using a general principle of light (explained in my book) (3) restores the federal structure of government so states can regulate their respective economies (this is a natural brake on the growth of legal complexity, because people could move to states which regulated wisely) (4) reduces partisanship in the federal government (5) fixes the flawed foreign policy architecture (currently too much power is invested with one overburdened official, the president; I propose an alternative arrangement) (6) restores a balance of power between branches of government (currently the executive has too much power) (7) de-politicizes the judiciary (8) explores whether a parliamentary system might be better for America (British constitutional scholar Adam Tomkins has a strong case for parliamentary rule) and (9) restores American democracy. Amendments won't suffice. I don't think we can count on an enlightened president to solve the problem, because part of the problem is excessive presidential power, and what president will be bold enough to give away his own power?
Last, I believe Philip K. Howard is one of the few Americans sharp enough to fix America, who cares, who grasps an important part of the problem, so I am inviting him to be a delegate to the Second Constitutional Convention and I hope he decides to attend. I think if he reads (not skims) my book, he'll agree with me that a Constitutional Convention is the ONLY way to restore America.
Thomas W. Sulcer
author of "Common Sense II: How to Prevent the Three Types of Terrorism" (Amazon)
-- free copy electronically soon via Google Books --
Common sense from a lawyer The author tries to draw a middle line between both possible extremes: those who want to secure their right to sue when thought injured and those who are just bystanders and get to "pay" for the misfortunes/injustices of others.
Too mild, too soft. The author could have given a lot more details about cases he knows, since he has inside information in Washington, but he "'d rather not tell". I little more plain talk would have been better. The first thing I noticed about America when I arrived was how legalistic the whole society was. A huge difference from Hispanic peoples: we have corruptions and dictators, laws are unenforceable, the real law is the local "cacique" (chief). In America laws are indeed enforceable, and here lies the terror of crazy laws....more info
Life without Lawyers This is a super book and should be read by all politians, school teachers, principals, doctors and more. ...more info
Accountability, Responsibility, and Freedom This book explains the unintended conseqences on our culture of too much law, especially the calcified layers of regulatory directives that have worked against the common good and cleansed our public sevants from accountability. The book also explains the origins of "my rights" and the litigation explosion that followed. What is unique about this book is that the author is able to give common sense solutions to many of the frustrations associated with government and our public schools. JAH...more info
Insightful Philip Howard has written a clear, compelling, and insightful commentary on the impact that we can now associate with the highjacking of the Black Liberation Movement in the U.S. With seventy percent of the U.S. population now members of a protected class, we have devolved into a political community where ? pluribus Unum (from many one) has been reinterpreted to mean one from many. We don't celebrate what unites us so much as we, with the help of the legal class, use what divides us to extort value from our treasury of social capital.
I recommend that you read Howard's "The Death of Common Sense" in order to understand how the U.S. Judicial System has been complicit, if not instrumental in the highjacking. You may conclude with me that tort reform drains energy from a more fundamental reform that should demand judges who judge, arguing that individual responsbility and accountability is more important than class extortion....more info