on February 6, 2009
This excellent book explains how excessive litigation has lead to excessive caution. Frightened individuals and institutions adapt their decisions and actions to avoid potential lawsuits, undermining our economy and our free society. Three especially interesting insights I got from this book were:
1. Sometimes the ability to anticipate and prevent a bad outcome should not be enough to establish liability for that outcome. The social value of an activity in which a risk inherently resides may outweigh the cost of that risk. For example, the few but inevitable accidents on school playgrounds have lead to lawsuits, which have compelled many schools to ban running at recess or eliminate playground equipment altogether. Kids should not be deprived of healthy and developmentally necessary play to prevent accidents that are few and far between.
2. Due process, once used to prevent the coercive power of the state from being abused, has been extended to institutions like schools and businesses, eviscerating the authority that individuals need to run their institutions. Teachers can no longer maintain order in most public schools, as their ability to discipline students is highly restricted and students know they won't be held accountable.
3. Objective rules cannot replace discretion and judgment. Most of human life is just too complex to be reduced to rules and regulation. There must be room for intuition and creativity, and in every institution some individuals must have the authority to make judgments. Out of fear and distrust of authority we have attempted to eliminate all discretion with rules, which instead has lead to stultifying bureaucracy and a decline in personal responsibility.
The book is sometimes not as rigorous as I would have liked, often relying on examples and anecdotes where I would have liked to see comprehensive data. Howard often writes that "many studies show", and although there is a bibliography, there are no footnotes to refer the reader to those specific studies. But these issues are minor compared to the strength of the book as a whole.
on March 29, 2009
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 Ç 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.
on January 9, 2011
In this book, Philip K. Howard talks 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.
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.
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.
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 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?
I recommend this book to all Americans.
on June 25, 2016
Definitely a good book. Well written. But, draws wrongs conclusions in relation to furthering judicial authority. Judges have too much authority and zero accountability. The issue: lawyers and judges are allowed to lie without penalty. Perjury is and has become profitable. The jury system should be restored. Few civil cases go to trial. Often, evidence is not heard for it is determined inadmissible. Radical change is necessary to restore the concept of justice in America. So, for that reason, I give this book 4 stars. 3 1/2 stars is probably a better gauge of what I thought. I believe crisp reform in our legal system is necessary. I wrote my book, Secret Corruption, to expose the corruption in the legal system, which is prevalent. The legal system is BIG business, and many profit from it. I believe this must change. Or, our nation is headed for a meltdown. I see the signs of it on the horizon. May we address it.
on February 23, 2009
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 (in terms of political participation) 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.
Overall, superb effort. Highly recommended.
Thomas W. Sulcer
Author of "The Second Constitution of the United States"
(free on web; google title + Sulcer)