America's Legal System Needs a Dose of Common Sense, Howard Argues

"We've turned the law from being the foundation of freedom into a tool of extortion that causes people to live in fear of being sued," Howard contended.

The American legal system needs common sense applied to it before the people's growing cynicism about it leads to social disintegration, according to Philip K. Howard, founder of The Common Good. "We need an overhaul of the legal philosophy of the country to restore reliable law," he said. "Distrust of law has infected daily choices throughout society. Americans no longer feel comfortable doing what's right because they don't trust the law" to protect them from opportunistic lawsuits. Howard, who has written two books on the problem, The Death of Common Sense: How Law is Suffocating America and The Collapse of the Common Good: How America's Lawsuit Culture Undermines our Freedom, spoke on "America's Lawsuit Culture: Is the Legal System Broken" at the Law School Sept. 12 at the invitation of The Federalist Society.

The vice chairman of Covington & Burling and a 1974 graduate of the School of Law, Howard cited doctors' and teachers' fear of lawsuits as inhibiting them from doing their jobs according to their own professional discretion.

A survey of doctors showed that six out of seven don't trust the law and are practicing defensively out of fear of malpractice claims, he said. "They are afraid to use e-mail because they fear having a written record," said Howard. Teachers will no longer touch upset children to console them for fear of facing a "sexual touching" lawsuit. The seesaws and jungle gyms built on America's playgrounds under President John F. Kennedy's program to promote youth physical fitness are now all preemptively removed to avoid the chance of lawsuits.

To suggest how far from sensible things have gotten, he pointed to ubiquitous warning labels. Howard, who collects examples of stupid warnings, said this year's winner was a label that read, "Caution: Remove Baby Before Folding Stroller." He recalled how Law School Dean John Jeffries, a classmate of Howard's, once waggishly proposed that a generic universal warning be instituted: "Caution: This product should be used by a person of ordinary intelligence."

"Everything involves risk," said Howard. "It undermines the freedom of a society to allow such suits to go forward." He cited a British case in which a young man dove into a lake where swimming was prohibited, broke his neck, and then sued. A House of Lords opinion on the case said that the world simply can't be made completely safe and that we don't want the "dull, gray" society that would result from such an effort.

"There is a paradox here," Howard asserted. "The rights our founding fathers gave us are rights against state power. They limit government's power over our free choices. A lawsuit is the use of that state power by one citizen against another.

"We've turned the law from being the foundation of freedom into a tool of extortion that causes people to live in fear of being sued," Howard contended.

"Americans believe they have a fair system of justice because they think it's neutral. Judges monitor the process and juries decide," Howard said. But that belief is now eroding. As one step toward a remedy he called for judges to be given more authority to act as gatekeepers over suits. "One problem with juries is that they can't decide that a case should be thrown out," he said.

"The solution is 'radical': shift responsibility for deciding who can sue for what back to judges and legislatures."

Common Good is a nonpartisan advocacy organization (board members include George McGovern and Newt Gingrich) campaigning to influence public opinion over what law should be, Howard explained. "The enemy is this conception of individual rights. We're saying these are not about just one person's rights. Is it about a kid who fell off a seesaw or the millions of people who want to play on them?"

Howard quoted Oliver Wendell Holmes's remark that "laws are prophecies of what judges will do," and Justice Benjamin Cardozo's observation that "the purpose of law is to make people comfortable doing what's right."

The fundamental problem, according to Howard, is that the value judgments we make are generally not provable, strictly speaking, but reflect our knowledge and experience, say as a doctor or teacher, about the situation at hand.

"Lawyers are exploiting the 'open season' attitude," Howard said. "Individuals are using the system to get rich."

Law professor Larry Walker offered a response to Howard's comments, first challenging the idea that the volume of contemporary litigation is unusually high. Scholarly investigation of such claims turned up court records in Accomack County, Virginia, for example, that showed 230 lawsuits per 1,000 residents in 1638, four times the modern litigation rate. Further, Walker said, rule changes in 1983 and 1993 moved the line on judges' control over civil suits back and forth without seeming to affect the problem. "How much is too much or too little?" he asked. "How do we identify improvement? I'm agnostic on the goal because I don't know what good is."

"It's not the increase in the quantity of litigation, it's the distrust of law that needs to be conquered," Howard answered. "A main problem is the judges' own perception of what their job is. They don't want to do something they fear could be overturned on appeal. Trial judges in America do not believe they have the authority to say that a suit can't be brought. The system is dominated by fear."

"We're in effect letting juries set standards of law and the problem with that is not that they'll get it wrong, but that they can't make it binding.

"We need an authority fix. We need to give teachers the authority to discipline their students, for example. We need to restore the authority to make unprovable judgments that are subject to accountability mechanisms. You don't need lawyers for this. We're trying to restore the idea of the common good."