How Did “The Land of the Free and the Home of the Brave” Become the Land of Lawyers and the Home of Bureaucrats? A Review of “Life Without Lawyers” by Philip K. Howard

In these recessionary times, Americans are divided along partisan lines on many important issues, such as whether to give tax breaks to the rich versus extending unemployment benefits. Democrats and Republicans argue about government spending, taxation, health care reform, immigration, foreign wars, and a host of other issues. But away from the spotlight of media attention and political debate is a cancer that has gnawed away at the social fabric of American society. This cancer has been growing for the last four decades, and shows no signs of improvement. I am speaking about the litigation and regulation explosion that has reduced Americans' ability to take risks, exercise authority, fire incompetent employees, maintain discipline in schools, and to take responsibility for their actions. The tragic part of this is that there is a bipartisan consensus for reform that is stymied by self-serving special interests such as trial lawyers and public-sector unions. Philip K. Howard takes up this issue in his latest book Life Without Lawyers: Restoring Responsibility in America

Howard, author of the best-selling The Death of Common Sense, has talked about the issue of excessive and nonsensical lawsuits and regulation in previous books. Since the problem hasn’t gotten any better, Howard revisits these issues, presenting newer examples, but also suggesting solutions. He also is trying to improve things via his organization Common Good.

There are two main points in the book. One, is that there are too many rules prescribing how to do things. These rules derive from the assembly-line mentality that arose from the Industrial Revolution. While some rules are necessary in any complex endeavor, such as a business, government, or school, our society has gone overboard with rules and organization. Too many rules stifle individual initiative and decision making. Howard presents many examples of this in the public schools. Teachers in New York City are forbidden from calling on students who raise their hands during the first part of class. A mother of a third grader, who arrived with a supply of birthday cupcakes, was turned away because there is a rule against parents in the classroom. Teachers write out detailed course plans every week that no one ever reads. Loudspeakers constantly blare out announcements, interrupting classes and making it impossible for teachers and students to concentrate. No Child Left Behind made things worse by focusing on standardized testing. Teachers’ union contracts dictate hours worked, limit teacher duties, and make it virtually impossible to fire incompetent teachers. Paint crumbles at the top of walls in some New York City schools because unions prohibit painting walls higher than ten feet.

The second main point is that since the 1960’s individual rights have trumped concerns over the common good. “Let any individual who feels aggrieved bring a legal claim for almost anything” (p. 23). This mindset arose from a desire to remedy abuses due to racial and gender discrimination. The problem is, however, that “[u]nlike constitutional rights, which shield citizens from state power, these new rights gave citizens a sword against other free citizens” (p. 23). It isn’t hard to find examples of how citizens utilize lawsuits as swords against other citizens. In 2007, a Washington, D.C. lawyer sued his dry cleaner for $54 million because he claimed that they lost a pair of pants. This idiotic and absurd case, which should have been immediately dismissed, was allowed to go on for more than two years, costing the family owning the dry cleaner over $100,000 in legal fees. While they won the case, they ended up having to close the store. Another example is a medical malpractice case. A dermatologist advised a patient to remove skin based on a biopsy indicating malignancy. The patient got a second opinion which indicated no malignancy, and didn’t get the skin removed. After getting terminal cancer several years later, the patient sued the first doctor on the basis that the doctor should have been more insistent about getting the skin removed. While the doctor prevailed in the case after seven years of legal battling, it could hardly be called a victory.

The result of out-of-control lawsuits is that Americans don’t trust the justice system anymore. They become defensive in their behavior, refusing to take risks out of fear of being sued. The most familiar and costly example of defensive behavior is in the field of medicine. Unnecessary care accounts for 30% of total health care spending. Nursing homes send dying ninety-year-olds to intensive care units, so that they can’t be sued for negligence in the person's death. Doctors have to document everything, in case they have to justify their decisions in court. Minor surgeries require expensive and unnecessary preoperative tests to prevent the providers from being sued.

The threat of lawsuits, combined with burdensome regulation, has eroded discipline in public schools. In a 2001 survey, 43% of high school teachers said they spent more time maintaining order than teaching. One in seven teachers in urban schools has been physically assaulted by his students. In New York City more than 60 steps and legal considerations are required to suspend a student for over 5 days. “Just sending a disruptive student out of the classroom requires layers of bureaucratic compliance” (p. 104). A violent autistic child in Hartford, CT, was kept in a regular classroom because his parents, exercising their rights under federal law, refused to allow him to be transferred to special ed. The school had to institute formal legal proceedings and receive a judge’s order to remove the disruptive child. After 2 years of hearings and thousands of dollars of expense, the school finally received the order to move the child.

Howard uses the “broken windows” analogy to explain how this erosion of discipline has harmed schools. If broken windows in a building aren’t fixed, the tendency is for vandals to break more windows, and eventually break into the building. After a few unchecked incidents, disorder takes over a school. “Young people aren’t known for their maturity, and pushing the envelope becomes a sport” (p. 105). Zero tolerance rules, which were supposed to counteract school disorder, only make things worse. The problem with these rules is that they can’t distinguish trivial from severe infractions. In 2001, a National Merit scholar in a Florida high school was suspended because of a small kitchen knife found in the back seat of her car on school grounds. “Instead of bolstering school authority, zero tolerance rules have become a symbol of lack of authority to do what’s right” (p. 106).

The fear and distrust of authority that began in the 1960’s was a major factor that led to our current legalistic mess. We tried to outlaw any type of discretion by people in positions of authority—teachers, administrators, managers, and government executives—by replacing this discretion with a tangle of rules and threats of litigation. But there is no substitute for good judgment, and good judgment relies on subjective and intuitive factors. Having to prove the correctness of decisions in legal proceedings leads to worse decisions. It’s true that people can explain why they did something, but only to a point. These explanations rarely rise to the level of legal proof.

“The alternative to absolute rights is not absolute discretion” (p. 58). Legislatures can establish clear public goals, and give officials the responsibility to achieve these goals. But meeting these goals requires the use of individual judgment, such as the decision that a student is too violent to be mainstreamed. People in power will at times make mistakes, and they should be held accountable for their mistakes. But trying to prescribe decisions by legal rule is a self-defeating way to organize our society.

Some specific reforms that Howard advocates include:

1) Judges must draw legal boundaries of reasonableness as they pertain to lawsuits. The “lost pants” type of lawsuit should be immediately dismissed. For other suits that aren’t obviously ridiculous, judges need to take into account whether a claim might undermine reasonable activities of people not in the courtroom. For example, the threat of lawsuits has resulted in playgrounds being stripped of fun equipment. Many schools have eliminated recess, and parents are afraid to allow their children to engage in unstructured play. As a result of these changes, children today spend much of their time in front of television and computer screens. This lack of exercise is one important factor in the obesity epidemic plaguing our nation’s youth. By trying to eliminate risky behavior among children, we’ve succeeded in making many of them fat, a health problem which will eventually cause much more suffering and death than an occasional accident.

2) Special courts are needed for medical malpractice claims. The problem isn’t the setting of standards of care. The problem is finding courts that are trusted to uphold these standards. Allowing medical malpractice claims to be heard in regular courts, with greedy trial lawyers manipulating clueless juries, has led to an explosion of defensive medicine. Special courts for medical malpractice would have the following characteristics: judges dedicated to health care claims, written judicial opinions rather than jury verdicts, neutral experts in place of hired guns, and expedited proceedings with incentives for early settlements.

3) Abandon the due process model for social services, especially public schools. Daily choices in schools and other public institutions need to be made by teachers and administrators with the freedom to use their judgment, without fear of lawsuit. These choices should not be determined by burdensome detailed regulation. In successful private and charter schools, teachers and principals are free to do what they think is best for their students. For public schools to succeed, their teachers and principals need the same freedom. This freedom includes the freedom of school administrators to fire incompetent teachers.

4) Don’t tolerate disorder in public schools. Principals and teachers need the authority to promptly remove disruptive students without worrying about following regulations or being sued by parents. Some students are too disruptive or violent to be mainstreamed, and they need to be removed from the regular classroom. Allowing individual students to disrupt classes makes it very difficult to properly educate the other students. While one student and his parents may win, everyone else loses. This individualistic and selfish model needs to change.

5) Discrimination cases should only be allowed for systematic practices of discrimination. This was the original purpose of discrimination laws, which since the 1960’s have been corrupted by greedy trial lawyers and irresponsible minority advocates. If a minority feels he’s being discriminated against, his lawsuit would be dismissed unless he can present evidence that the employer discriminates against minorities in general. Individuals should not be allowed to bring claims only on behalf of themselves. An exception is for individual claims of sexual harassment, but only if they rise to the level of quid pro quo.

6) Washington needs to be fixed from the outside. Partisan politics and special interests have made it impossible for our representatives to achieve any important changes in the areas that Howard talks about. As with the No Child Left Behind law, they just pile layers of legal concrete on people and institutions that are already crushed by law. We must form a national coalition of citizen leaders, a shadow government, to propose an overhaul of government. The models for this are the base-closing commissions in the 1990’s, or the current deficit-reduction commissions. To effect change, public opinion must be mobilized in a way that it hasn’t been since the 1960’s. “America doesn’t need a new Constitution, just a healthy spring cleaning and a practical approach to making public choices without crushing us under endless law” (p. 177).

The only problem with this book is that it lacks an index. I don’t remember ever reading a nonfiction book without an index.

Due to excessive regulation and litigation, America in the early 21st century is a shell of its former self. We’ve become afraid to take risks, afraid to use our judgment, and afraid to do what we think is right. Is this the type of mentality that motivated the early pioneers, people who risked everything to settle an unknown and sometimes hostile country? Is this the type of mentality that motivated the great American inventors, entrepreneurs, and other creative people? Would Edison have invented the light bulb if he was afraid of being sued by the candle makers? Would Tesla have invented A/C electric power if he was afraid of being sued by the family of the rare person who was electrocuted? Would railroads, cars, and planes have been invented and made available to the masses if companies were afraid of being sued due to accidents? Would America have risen to a leadership position among nations if its public schools were always in the sorry shape they are in today? Would a legal and political system have been a model to the world if it allowed a greedy scumbag to sue his dry cleaner for $54 million dollars?

The problems that Howard describes in his book are not the only problems that America faces. Obviously, we need to be concerned about other things, including the recession, our government’s long-term fiscal health, and the threat of terrorism. But overregulation and overlitigation, although less publicized, nevertheless affect Americans in their daily lives—in their schools, workplaces, doctors offices, hospitals, and even their homes. The cost in money, worry, wasted time, and unhealthy behavior is severe. I recommend “Life Without Lawyers” to all Americans.