Legal Affairs – How More Rights Have Made Us Less Free

National Journal

Teachers in Michigan’s public schools are prohibited by law from patting students on the back, lest someone shout "sexual harassment." But it is almost impossible to get an incompetent teacher, or a disruptive child, out of the classroom anywhere in the country. Bristol, Conn., like other towns, has removed the seesaws and merry-go-rounds from its playgrounds. Some kids find the new, certifiably safe playground equipment so boring that they make up games of crashing into it on their bicycles.

Little League coaches move Joey, their second baseman, to fill in for an absent outfielder-only to be hauled before a jury and ultimately forced to pay a $25,000 settlement after Joey loses a high fly in the sun and gets hit in the eye. (The coaches should have given Joey fly-ball-in-the-sun instruction or flip-down sunglasses, his parents claimed.) Another Little League game is canceled when the umpire fails to show up, because parents who would like to fill in are afraid they might be sued if someone gets hurt. Car dealers, fearing liability, turn away customers who want them to disconnect air bags that can injure small children. Some churches have begun to discourage ministers from counseling troubled parishioners. An artificial fireplace log carries this warning label: "Caution: risk of fire."

Underlying these and countless other perversities, argues a crusading would-be reformer named Philip K. Howard, is a fundamental legal, cultural, and philosophical shift-"the triumph of individual rights over authority"-carried to senseless extremes. "Legal fear," Howard says, "has infected the daily choices of Americans."

By exalting the "right" of any angry individual to haul just about anybody into court for just about anything, we have all become less free to do what we think is right and focus on the common good, Howard asserts. So wary are we of subjective value judgments by people in authority (ranging from kindergarten teachers to mayors), and so enamored are we of supposedly neutral decision-making based on "proof" of the unprovable, that the rulebooks become ever-thicker and more incomprehensible, the bureaucracies become ever-vaster and more impersonal, and due process runs amok, smothering the discretion of teachers, principals, police officers, environmental regulators, judges, and others to follow their best instincts and get things done. Peter’s right to sue the school for disciplining his disruptive kid supersedes Paul’s desire to learn in a quiet and orderly classroom.

The tall, engagingly evangelistic Howard, author of an influential 1995 best-seller titled The Death of Common Sense, argues these points gracefully (albeit polemically and a bit repetitively), with examples by the dozen, in the newly revised paperback edition of The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom, first published last summer. But this author is not content merely to write books, practice law, and take on real estate interests as a community activist in New York City, where his day job is representing corporate clients as a senior partner of Washington-based Covington & Burling. (His firm, he notes, has "profited on the defense side" of various "lawyers’ feeding frenzies."oward has enlisted an eclectic group of savants and business leaders as board members of a new organization, The Coalition for the Common Good, to prepare a frontal assault on the "rights revolution" that has transformed the law and permeated our culture over the past 40 years or so. The first order of business will be to commission opinion polls to measure the effects that legal fear has had on medicine, and legal "rights" have had on K-12 education, to name but two examples.

"Intending to check abuse of authority, we transferred power to every angry person to bully society," Howard asserts in an interview. "The cure has become the disease. People are hungry for some way of breaking the logjam. I’m offering a new way of looking at it."

Not entirely new, of course. People have been complaining about dumb lawsuits for decades. And Howard weaves into his arguments quotations from thinkers such as Aristotle, de Tocqueville, Ralph Waldo Emerson, Benjamin Cardozo, and Vaclav Havel. But he probes more deeply than tort reformers, and his ambitions are more radical. Howard wants "an overhaul of legal structures to restore authority to balance claimed individual rights with the common good" and "a new deal for public employees and teachers, which in exchange for exposure to personal accountability, liberates them to use their judgment, instinct, and values." This may seem quixotic: "It’s not an easy thing to change a philosophy," as Howard puts it. But his analysis is insightful and original enough to help us see our world more clearly.

How do more rights make us less free? These days, Howard explains, "rights in our daily thoughts concern suing and being sued by other people." But a lawsuit "seeks to use government’s compulsory powers to coerce someone else to do something…. The point of freedom is almost exactly the opposite: We can live our lives without being cowed by use of legal power."

Of course, the rights revolution has made some of us more free some of the time. High school students are free to wear black armbands in class to protest whatever offends them-or to disrupt classes, shout obscenities at teachers, or even assault them without fear of expulsion or serious discipline. Patients are free to sue doctors for amputating the wrong leg-or for failing to do expensive tests that no good doctor would consider medically appropriate.

At the root of the problem, stresses Howard, is the unwillingness of modern judges to do what their greatest predecessors, such as Cardozo, considered essential: Make the value judgments necessary to dismiss weak lawsuits. The result is that the value judgments are made by juries, which used to be limited to resolving factual disputes and which now reach dramatically different conclusions from one cause to the next about, say, how hot take-out coffee should be. Unlike judges, juries have no power to make legal rules upon which the next defendant (or plaintiff) can rely. So nobody can be confident what the law is. In an era of gargantuan damage awards, this means that an unwarranted lawsuit with a 1-in-10 chance of winning can force a blameless defendant to pay a big settlement.

The ripple effects extend far beyond the courtroom. Howard’s leading example is the classroom. The inability of teachers and principals to keep order "without attacking a hornet’s nest of rights," he says with characteristic hyperbole, is "ruining the education system." Meanwhile, civil service rules and teachers’ rights to seek legal redress if fired, suspended, or even given unflattering evaluations without "due process"-which might mean having to prove gross misconduct at a formal hearing, with lawyers, witnesses, and other trappings of a trial-has made it nearly impossible to get bad teachers out of the classroom. "How do you prove that someone has bad judgment? Or doesn’t try hard? … Or wasn’t really sick every other Friday?" asks Howard. "Judgments about who is doing a good job, more than most, are essentially unprovable." So are value judgments.

Champions of the rights revolution scoff at such critiques as overblown and anecdotal. How hard can it be to give someone a little due process? This hard, says Howard: While surveys of school administrators suggest that between 15 percent and 20 percent of teachers are not fit to teach, "between 1991 and 1997, only 44 out of 100,000 tenured teachers in Illinois were dismissed," and in California, "62 out of 220,000 teachers were dismissed during a five-year period."

Most of us can see legal fear at work in our daily lives. Maybe you had to hand over your child for a year to a teacher who could neither teach nor be fired. Maybe you have a friend who (like mine) was a happy, dedicated kindergarten teacher but lost her enthusiasm when assigned to fifth grade, because a few disruptive students ruined the learning environment for the whole class. Maybe your sister-in-law (like mine) decided to become an emergency medical technician, only to find that the first two classes focused on avoiding lawsuits, not saving lives. Or maybe you know a business owner who (like one I know) refuses to give former employees references of any kind-favorable or unfavorable-lest someone sue for unequal treatment.

Help is on the way, however. All Philip Howard has to do, in his spare time, is spark what he calls "a popular movement to overcome the inertial forces and vested interests that have a death grip on the status quo," reform "an oppressive legal structure," and get the Supreme Court to rethink a bunch of constitutional law. In your head, these are difficult issues that experts say Howard oversimplifies. In your heart, you know he’s mostly right.