Too Much Law Guarantees Unfairness

National Journal

It’s no secret that America’s public schools, health care system, and lawsuit industry — among other institutions — are broken. After decades of alarming reports and reform efforts, they still cost far more, and with worse results, than those of almost all other developed countries. And President-elect Obama’s hope of changing things dramatically for the better faces an uphill battle.

A big part of the reason, New York City lawyer-author-civic leader Philip Howard writes in a forthcoming book, Life Without Lawyers: Liberating Americans From Too Much Law, is that our institutions and their leaders are paralyzed by tangles of legal rules and diverted "from doing what we think is right" by fear of being unfairly hauled into court.

"We will never fix our schools, or make health care affordable, or re-energize democracy, or revive the can-do spirit that made America great," Howard writes, "unless American law is rebuilt to protect freedom in our daily choices." By this he means freeing ourselves from "the confusion of good judgment with legal proof."


"Washington is paralyzed," writes Philip Howard, by "decades of accumulated law, beyond the influence of anyone except special interests."


Reprising the themes of Howard’s best-selling Death of Common Sense in 1995, Life Without Lawyers also proposes some far-reaching remedies, designed in part to affirmatively define and protect the freedom of people in positions of authority to fulfill their responsibilities in their own way. To be published on January 12, its 191 pages are crammed with telling cases, anecdotes, and data. It brims with insights into how "rights" that were created to prevent "unfairness by those in authority" are now "guaranteeing unfairness to the common good."

Howard, who is a senior partner in the New York City office of Covington & Burling and chairs Common Good, a legal reform organization that he founded in 2002, has convinced an ideologically eclectic array of leaders that he is on to something. Life Without Lawyers carries admiring blurbs by New York City Mayor Michael Bloomberg, former Sen. Bill Bradley, former Harvard University President Derek Bok, and former House Speaker Newt Gingrich.

The book focuses especially on our schools, health care system, and lawsuit industry — which itself plagues schools, as illustrated by the ban on running in playgrounds that one Florida county adopted after having to settle 189 playground lawsuits in five years, and health care, as demonstrated by the surge in childhood obesity caused in part by overcautious playground safety rules.

• Lawsuits. The modern American approach to litigation includes "letting anyone sue for almost anything," Howard explains, with endless proceedings in cases that judges would once have dismissed out of hand. This is "supposedly neutral [but] in fact tilts the scales in favor of whoever is in the wrong. Defendants can coerce an unfair settlement by dragging their feet, and plaintiffs can extort settlements by suing for ruinous damages irrespective of actual loss or fault."

The book traces how the "rights revolution" of the 1960s and ’70s, initially a shield against abuses of power by government and business, has morphed into an engine of abusive and often fraudulent lawsuits that allows "self-interested parties to invoke legal power unilaterally to threaten the livelihoods of other free citizens."

This "tyranny of the angry individual," Howard writes "turns our rights upside down…. The lawyers pretend that they’re Robin Hood, with the modern twist that they keep much of the money for themselves."

One reductio ad absurdum was the $54 million lawsuit against a Washington dry cleaner accused of losing an administrative law judge’s pants. The multimillion-dollar claim was obviously frivolous. But the courts kept it alive for more than two years of legal wrangling at a cost of over $100,000 in legal fees, exhausting the savings of and inflicting misery on the store’s Korean-born owners. No wonder only 16 percent of respondents in a 2005 Harris poll commissioned by Common Good said they would trust justice if someone brought a baseless claim against them.

The incremental tort reforms pushed by business and physicians groups won’t fix the fundamental problem, in Howard’s view. What’s needed, he says, is to "restore the authority of judges to draw legal boundaries," by dismissing unreasonable lawsuits at the outset and penalizing those who bring them. He also suggests creating independent "risk commissions" to propose guidelines identifying activities that should be immune from lawsuits.

• Schools. Despite massive reform efforts, "reading scores in elementary and high schools have stayed flat for almost 40 years. In that period, the ranking of American students has consistently fallen relative to their peers in other developed countries."

Why? In large part because literally thousands of bureaucratic rules imposed by local, state, and federal governments prevent good teachers and principals from using their best judgment on what works; because "due process" and special-education rules have made it very difficult to remove disruptive students; and because labor contracts have made it almost impossible to fire bad teachers.

Disorder is "at epidemic level" in many schools, Howard writes. In Public Agenda surveys, more than 40 percent of high school teachers have said they sometimes spend more time trying to keep order than teaching, and nearly 80 percent of middle and high school teachers said they have been threatened with lawsuits or accused of rights violations by students. Another survey found that one in seven teachers in urban schools had been physically assaulted by students. Some have been seriously injured. Principals send disruptive students back to class for fear of being sued or dragged through endless hearings. In New York City, more than 60 steps and legal considerations are required to suspend a student for more than five days.

Such disorder is not a big problem in most parochial and charter schools, or in other developed countries, Howard writes, because "teachers in those schools have the authority to enforce values of common civility."

Meanwhile, "the toxic combination of union protectionism and the 1960s expansion of due process" have brought us to a point where "years of legal argument — years — are required to get rid of a bad teacher."

How to fix all this? Legislatures should "shove the rulebooks aside" and purge law from the routine daily life of schools, and liberate teachers and principals to act on their own best judgment. This should include the freedom to remove disruptive students without hearings or fear of lawsuits and fire teachers without litigation over tenure.

Would this risk unfairness to some? Sure. But that would beat the unfairness to all students of disorderly classrooms and bad teachers. And as a check, independent committees of parents, students, and/or teachers could be created to overturn disciplinary decisions. Committees including union officials could be empowered to overrule unfair teacher firings.

• Health care. The legacy costs dragging down General Motors "are feathers compared with what’s weighing down health care," Howard says in an interview. His book cites data showing that "unnecessary care — motivated by legal fear, greed, and ineffective variations in care — accounts for upwards of 30 percent of the total bill. Defensiveness seeps into daily decisions like an acid, corroding professional instincts of what’s right."

This includes "a sea of forms and waivers" that waste doctors’ (and patients’) time, unneeded tests and procedures, and distrust between doctor and patient, all driven by fear of malpractice lawsuits, which often win monetary settlements even though the doctors did nothing wrong.

"Health care can’t be fixed," argues Howard, unless we establish special "health courts" for medical malpractice claims, staffed by expert judges and neutral expert witnesses, with expedited proceedings, incentives for early settlements, and written opinions to establish and enforce consistent standards of care, rather than jury verdicts that vary from case to case. The result, he predicts, would be compensation for more people, fewer big-dollar pain-and-suffering awards, and dramatically lower legal expenses. Patients groups as well as providers support pilot projects of this kind.

• Washington. "Washington is paralyzed," Howard writes, by "decades of accumulated law, beyond the influence of anyone except special interests that scurry around the baseboards making sure nothing ever changes." It "can only be fixed from the outside," he argues, by mobilizing "a national coalition of citizen leaders to propose an overhaul of government" and build public pressure for change.

He has had a taste of the current paralysis up close, in meetings in which a House Democratic leader dismissed his proposal for a health court pilot project out of hand because "the lawyers are against it." A Bush political adviser rejected it because the president preferred to push a doomed damage-cap bill and then blame the Democrats when it failed.

Howard’s diagnoses may be a touch hyperbolic. His prescriptions will strike many as hopelessly utopian and others as unnecessary at a time when a man elected on a platform of changing Washington is about to take power.

But Life Without Lawyers makes a powerful case that unless leaders from outside the world of politics overpower the entrenched special interests that dominate both major political parties, even Barack Obama will have little chance of transforming Washington — and no chance at all of fixing our schools, health care, or stultifying legal culture.

This article appeared in the Saturday, December 20, 2008 edition of National Journal.