November 23, 2014
Many of us in the legal reform community often become so focused on the actual dollar cost of our out-of-control litigation system we often lose sight of the broader picture of how our lawsuit-happy culture diminishes freedom and undermines the can-do spirit that made America great.
While the tremendous costs of litigation are real and important, it’s necessary sometimes to take a step back and look at the bigger picture – and this is just what Philip K. Howard has done with his latest book, Life Without Lawyers. In a Wall Street Journal article today, Howard reminds us how much we’ve really lost because of the “sue-first” mentality that pervades our culture and lays out a path to restore some measure of the freedom that has been taken away. Read the whole piece, but here are some highlights:
The growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices. All around us are warnings and legal risks. The modern credo is not “Yes We Can” but “No You Can’t.”
You can’t even show basic human kindness for fear of legal action. Teachers across America are instructed never to put an arm around a crying child….Ordinary choices – by teachers, doctors, officials, managers, even volunteers – are paralyzed by legal self-consciousness. Did you check the rules? Who will be responsible if there’s an accident?
Taking risks is not longer the badge of courage, but reason enough to get sued. There’s an epidemic of child obesity, but kids aren’t allowed to take normal risks of childhood. Broward County, Fla., has even banned running at recess….Skyrocketing health-care costs are impossible to contain as long as doctors go through the day thinking about how they will defend themselves if a sick person sues.
The solution is not just to start paring back all the law – that would take 10 lifetimes, like trying to prune the jungle. We need to abandon the idea that freedom is a legal maze, where each daily choice is like picking the right answer on a multiple choice test. We need to set a new goal for law – to define an open area of free choice. This requires judges and legislatures to affirmatively asset social norms of what’s reasonable and what’s not. “The first requirement of a sound body of law,” Justice Oliver Wendell Holmes, Jr. wrote, “is that it should correspond with the actual feelings and demands of the community.”
Reviving the can-do spirit that made America great requires a legal overhaul of historic dimension. We must scrape away decades of accumulated legal sediment and replace it with coherent legal goals and authority mechanisms, designed to affirmatively protect individual freedom in daily choices.