The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom (Paperback)

by Philip K. Howard (Author) "The double slide in Oologah, Oklahoma, donated to the town park by the Kiwanis Club, was a local landmark..." (more)
Key Phrases: legal fear, double slide, ironic history, New York, Supreme Court, Carmen Farina (more...)

Editorial Reviews

Amazon.com Review
Author Philip K. Howard returns with the same storytelling style and supreme reasonableness that made his first book, The Death of Common Sense, such a smash hit in 1995. He begins The Lost Art of Drawing the Line by noting the damage predatory litigation has done to the communal fabric of the United States: "Social relations in America, far from steadied by law's sure hand, are a tangle of frayed legal nerves." He tells how seesaws have started to vanish from playgrounds, how teachers are banned from touching students, and how emergency-room staff are blocked from attending to patients off hospital grounds--even if they can see them bleeding to death just 30 feet away. These aren't just speculations, a parade of hypothetical horror stories--they are actual trends and events that Howard describes and documents. The ability to weave dozens of anecdotes like these into his narrative is one of Howard's great strengths, and it allows him to make important points in entertaining ways.

Yet the book is much more than a collection of outrageous stories or a mere broadside against the legal system--though the legal system does come in for plenty of criticism. Instead, it's a meditation on the meaning of freedom, why freedom cannot exist outside of authority, and why individuals in positions of authority should have the ability to make decisions based on sound judgment. There is a temptation to secure liberty by restricting authority through the law, but this can be overdone, and it carries a high price: "Put law or any other formal construct in the middle of daily dealings, and people will start looking to the law instead of to one another." Then things get much worse: "The more our common institutions fail us, the more Americans want to limit their authority. Through a downward cycle of distrust, legal controls, [and] worse failure ... we drive Americans' governing institutions further into the bureaucratic maw." That is a terrible place to be, where no one is held accountable and antisocial behavior rules. And it has nothing at all to do with freedom. --John J. Miller --This text refers to an out of print or unavailable edition of this title.

From Publishers Weekly
Howard offers a powerful though myopic look at our litigious society. When the common interest is undermined by the fear of being sued, as in America today, Howard claims, we have a social dysfunction rooted in the embrace of individual rights. Understanding justice as the right to champion individual interests and judicial fairness as neutrality between claimants provides no standard for what is good or even reasonable: "Justice today is purposeless" and has become "a kind of sporting contest." Instead of protecting society, law has become a vehicle for the pursuit of individual entitlement, while judges shy away from making value judgments. What's missing, says Howard, is authority, a recognizable source of values and leadership that asserts a hierarchy of goods in place of the undifferentiated arena of individual rights. Far from threatening individual freedom and democracy, Howard argues, authority is indispensable if we want to overcome the "structural flaw" of individual rights, with its unintentional transfer of "power for common decisions to self-interested individuals." While this argument is sensible and persuasive as far as it goes, it suffers from an oddly truncated view of the world. It's as if society consists only of individuals and government, with interests limited to individuals and the public as a whole, without corporations, interest groups and other organizations anywhere in sight. With the exception of teacher's unions, Howard strips his analysis of much of the sources of power and interest in American society, leaving his otherwise thoughtful efforts seriously incomplete. (Apr.) Forecast: Howard's last book, The Death of Common Sense, earned him a reputation as a cultural pundit, so his 10-city tour should garner him media attention if not respectable sales.

Copyright 2001 Cahners Business Information, Inc.

--This text refers to an out of print or unavailable edition of this title.

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Product Details

• Paperback: 272 pages
• Publisher: Ballantine Books (January 29, 2002)
• Language: English
• ISBN-10: 034543871X
• ISBN-13: 978-0345438713
• Product Dimensions: 8.2 x 5.9 x 0.7 inches
• Shipping Weight: 8.8 ounces (View shipping rates and policies)
• Average Customer Review: 3.5 out of 5 stars See all reviews (20 customer reviews)
• Amazon.com Sales Rank: #385,045 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

22 of 25 people found the following review helpful:

5.0 out of 5 stars Superb., August 21, 2001

By	P. Meltzer (Wynnewood, PA USA) - See all my reviews (REAL NAME)

This review is from: The Lost Art of Drawing the Line: How Fairness Went Too Far (Hardcover)

Aside from what I considered to be a weak title, everything else about the book was superlative and highly thought-provoking. It is obvious when when people were spreading the gospel of individual rights through our society, no one stopped to realize that the random and haphazard exercise of one person's individual rights often ran in direct contradiction to society's rights as a whole. As Mr. Howard says about juries for example: They are not thinking about the effect of their decision on society; they are merely thinking about the two litigants whose case they have been asked to decide. The problems created by this phenomenon are particularly evident when it comes to puntive damages. When plaintiff's lawyers urge jurors to "teach this company a lesson for their [supposedly] heinous conduct" the jurors can respond by blithely awarding tens or even hundreds of millions of dollars in punitive damages, and go to bed at night feeling that they have "served" society by their actions. And of course the great irony is that they have accomplished the exact opposite result. I don't know how much of an effect Mr. Howard's book will have. While it may not be readily apparent, the interest groups that have no interest whatsoever in adopting his suggestions--e.g. the American Bar Association, unions of all stripes and colors, libertarians (ironically) and even Congress to some extent--will act to make sure that the status quo remains the status quo. Nevertheless, I would be delighted to see all of America take his message to heart.

24 of 28 people found the following review helpful:

4.0 out of 5 stars How Fear of Law Suits Harms Us All!, July 15, 2001

By	Professor Donald Mitchell "Jesus Makes Me a P... (Boston) - See all my reviews (TOP 10 REVIEWER)

This review is from: The Lost Art of Drawing the Line: How Fairness Went Too Far (Hardcover)

Mr. Howard is a lawyer, and he points out that potential law suits have become a debilitating factor in our society. The book is filled with many poignant examples of how running scared of the lawyers causes us to suffer harm. An emergency room staff in Chicago left a man bleeding with a gunshot wound 30 feet from the door because they feared being sued by patients who already were in the ER if the staff left to bring the man in. Teachers will not give students a hug for fear of sexual harrassment suits. The governor of a state could not get a new light bulb because of civil service rules designed to avoid unfair treatment of employees and citizens. The examples are strong and will make you more sensitive to the subject.

Most of the book's content looks at education, government service, racial discrimination in companies, and bureaucratic rules everywhere. The point of reference is the current state of legal thinking, which upholds having a "neutral" judiciary that deals with disputes. Unfortunately, a lot of silly suits are started. One of my favorite examples in the book involved a dispute between two three-year-olds in a sandbox in a public park in Boston. A judge took the case and issued a temporary restraining order keeping the two kids apart. The other problem is that juries can make up ridiculous awards, both for the primary injury and for punitive damages. Everyone by now knows the story of the elderly woman who collected over $600,000 for hot coffee she spilled on herself after picking it up in a drive-through at McDonald's. But did you know about the guy whose new car had had its paint touched up, and initially got a punitive damage award of $1,000 for each car that had been touched up to paid to him?

One of the things I liked most about the book was the way Mr. Howard tied all of this in to modern ideas about how organizations work best, which is to give those on the spot lots of autonomy to make choices and use their judgment. Otherwise, you get the tyranny of looking at optimizing one area (avoiding legal suits) while suboptimizing the whole area (providing education, government services, or products to customers). He has several examples of teachers and principals who made a difference by doing what needed to be done, regardless of the potential for suits.

The book's weakness is that it basically encourages those who may be sued to take a chance anyway. You may be sued, but you will be helping. I agree that in many cases there will be no suits, but to the family who goes bankrupt as a result of an ensuing suit that advice provides little solace.

I think he is really describing a society that wants to have a chance to win the lottery -- being injured gives you a chance to get billions! Well, maybe thousands in reality. When the bulk of society wants to have that chance, you have to assume that the laws will favor providing that free run in court with a lawyer who gets paid a contigent fee.

If we are willing to give up on our "right" to win the law suit lottery, we can have a more effective society. Are we ready for that?

On the other hand, we shouldn't throw out the right to sue. Many times, there's no other remedy available.

Balancing these needs is something that we have to hope our legislators will become better at accomplishing. This book should help raise the alarm. But you will do more good by writing letters explaining your views to your legislators than this book can hope to accomplish.

13 of 14 people found the following review helpful:

4.0 out of 5 stars Re-Drawing the Line, May 9, 2001

By A Customer

This review is from: The Lost Art of Drawing the Line: How Fairness Went Too Far (Hardcover)

Not quite as good as his previous "The Death of Common Sense", but sure to generate conversation and controversy. Howard here concentrates most of his scrutiny on the dearth of fairness and common sense in education and civil service. He fearlessly tackles such hot-button issues as racism in the workplace, and teacher discipline in the schools. A must-read for anyone who feels like life is swirling down the drain in a morass of lawsuits.