Justice Hugo L. Black once told me that he thought all government departments and agencies should be abolished every five or ten years. Black was a senator from Alabama for ten years and a Supreme Court justice for thirty-four, and he knew just about everything there was to know about how government works. His startling idea—and I think he was serious—was his way of dealing with the encrustations of bureaucracy.
Reading Philip K. Howard’s book, I suddenly recalled Justice Black’s remark. Not that their concerns are the same, just the sweeping character of their responses. Howard is worried about what he deems the excessively legalized American society. He begins his book as follows:
“Sometimes I wonder how it came to this,” a teacher in Wyoming told me, “where teachers no longer have authority to run the classroom and parents are afraid to go on field trips for fear of being sued.” Thomas Jefferson might have the same question. How did the land of freedom become a legal minefield? Americans tiptoe through law all day long, avoiding any acts that might offend someone or erupt into a legal claim. Legal fears constantly divert us from doing what we think is right.
Howard argues his case with horror stories. A five-year-old girl in kindergarten in St. Petersburg, Florida, goes on a tear, throwing books and pencils on the floor and ripping papers off the bulletin board—in her classroom and in the principal’s office, where she is steered. No teacher stops her, because everyone is bound by a rule against touching children. Eventually they call the police, who take the child away in handcuffs.
Absurd? Yes. But Howard says the rule against touching children, apparently adopted in fear of accusations of pedophilia, is now nearly universal. His daughter’s college roommate, teaching beginning swimmers in Harlem, had to ask the children for permission before holding them up in the water: ask every time.
Josh Kaplowitz, a college graduate in the Teach for America program, put his hand on the back of a seventh-grade student who was misbehaving to usher him out of the classroom. He was sued for $20 million—and criminally indicted. The criminal charge was eventually dropped, but the school settled the civil lawsuit by paying $90,000, Howard says.
A 2004 survey cited by Howard found that 78 percent of middle school and high school teachers have been accused by their students of lawlessness or violating their rights. Broward County, Florida, Howard says, prohibited children from running in playgrounds after settling 189 playground lawsuits in five years.
Then there is the much-lamented case of the $54 million trousers. A lawyer in Washington sued a dry cleaner for that amount for allegedly losing a pair of his pants. The case and the plaintiff were much mocked in newspaper stories. But I do not remember reading what Howard tells us: that it dragged on for two years, cost the Korean immigrants who owned the store $100,000 in legal fees, and led them to close the store.
Medical malpractice is a familiar source of discontent about overlegalization. Howard cites a 2006 study by the Harvard School of Public Health finding that 25 percent of payments for malpractice were made in cases where there was in fact no negligence—and 25 percent of meritorious claims got nothing. He urges the adoption of specialized health care courts, which would give lower but fairer awards. The obstacle to such a system for rationalizing—and evening out—malpractice judgments is not only the natural opposition of plaintiffs’ lawyers, who are famously a major source of campaign contributions to Democrats. I believe it is that Americans may actually prefer the lottery approach, gambling that they may be the lucky winners of huge awards.
The broadest reform urged by Howard, and likely the most controversial, is to eliminate the tendency of American law in civil damage cases to advance the interest of particular individuals without fair regard to the needs of the community. He offers painful examples from the experience of federal laws granting rights to children with disabilities.
In Hartford, Connecticut, in 2002, a boy with autism in the seventh grade began attacking other students and kicking his teacher. His parents rejected a request that he be moved to a school where he could not injure others. The school instituted legal proceedings required by federal law. “After almost two years of legal hearings,” Howard writes, the hearing officer issued an order that the boy be removed from the school. Howard’s account of that case appears to come from a story in the Hartford Courant, which said that the hearings lasted two months, not two years, and that the boy was apparently “adjusting well” in a new school. There is no indication that Howard did any independent research on the case.
In a school near Houston, Texas, Howard says, it took eight due process hearings at a cost of more than $100,000 to force the removal of an autistic eight-year-old boy. Then his mother announced that she was returning him to the school. Two teachers resigned, one of whom had spent twenty-two days the previous year in meetings and hearings about the boy. Howard gives no instances of misbehavior by the boy. In the online footnotes for the book he cites as sources for this passage two “education lawyers” in Houston, not any of the principals in the dispute.
The first special education law, passed in 1975, which required “specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child,” was an honorable response to terrible injustices, as Howard concedes—previously, “dis abled children were ignored or locked away in awful institutions.” But he argues that Congress and the courts, in expanding other rights, particularly due process “rights,” from the 1970s onward, wrongly moved from guaranteeing fair treatment of handicapped children to protecting individuals while imposing unfair burdens on teachers and other students.
I come to Howard’s book with a fair amount of skepticism. Any system of law will produce outrageous outcomes from time to time—the $54 million trousers. And the demand for law “reform” often is really a campaign on behalf of big companies and other institutions that do not want to pay large damages for their wrongdoing.
Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit is one of the most highly regarded judges in the country, and no one would call him a soft-headed sentimentalist. In a recent book, How Judges Think, he discusses the legal philosophy he calls “legalism,” which tries to confine legal interpretation to narrow historical and rational grounds. “The currently most influential incarnations of legalism,” he writes, turn out
to be guided by a political judgment: that there are too many legally enforceable rights. Today’s exaltation of legalism is to a significant extent a reaction by politically conservative legal thinkers, including a number of prominent judges, to the expansion of rights and liability—particularly the rights of tort (including civil rights) plaintiffs, breach-of-contract defendants, prisoners, consumers, workers, and criminal defendants….1
Some proposals by advocates of “law reform” transparently serve conservative interests. One, for example, is the idea that losing parties in civil lawsuits should have to pay the lawyers’ fees of the winners. That sounds fair, but its practical result would be to make it forbiddingly risky for anyone but the well-off to sue. Defendants with deep pockets could incur enormous costs, which would have to be paid by plaintiffs who lost lawsuits.
Howard does not make the fee- shifting proposal, and he does not come across as a stalking-horse for the interests of large corporations, insurance companies, and other frequent defendants in tort cases. The examples he gives in his parade of horribles seem outrageous. But I doubt that they sustain his indictment of the entire legal system. Do Americans really “tiptoe through law all day long”? I don’t. Do “legal fears constantly divert us from doing what we think is right”? Something like that may indeed be so in some fields; doctors do often practice defensive medicine, ordering unnecessary tests in case of litigation, and schools do worry about lawsuits. But for the society as a whole it is surely an overstatement.
Nor does Howard dig deep enough to explain the excesses of American tort law and the eagerness to seek vast damages for civil injuries. He blames the overreaching of Earl Warren’s Supreme Court in its sympathy for the little man, and the mood of antipathy to large institutions starting in the 1960s. He does not explore deeper social causes.
This country is notoriously lacking in safety nets that are taken for granted in other advanced societies. Medical care is guaranteed by the state, by one method or another, in Canada and all European countries; in the United States upward of 40 million people have no medical insurance. Around 46 percent of employed Americans get not even one day of paid sick leave—which is guaranteed by law in 145 other countries. Lawsuits are often a substitute for safety nets.
There is a historical example that makes the point: workers’ compensation. Employees injured on the job used to have to bring tort actions against their employer; that required proof of negligence, and complicated doctrines were developed by some courts to deny the claims of plaintiffs. Early in the twentieth century a movement led by Louis D. Brandeis—then a reformist private lawyer in Boston, later a Supreme Court justice—sought a system that would compensate the injured without regard to negligence, and in return would bar lawsuits. By 1949 every state had a workers’ compensation law. It is a perfect example of a safety net that assures limited compensation without the gamble of litigation.
With his sweeping characterization of a society in the grip of pettifogging law, Howard might have been expected to call for drastic changes. But his proposals are quite modest: hardly what he promises in his title, a way to life without lawyers.
First, he argues, “judges must draw boundaries of reasonableness as a matter of law,” curbing the excesses of juries. Invoking his principle of concern for societal needs over individual claims, he says a rule of law should reject legal claims that “might undermine reasonable activities of people not in the courtroom,” such as a claim that would result in playgrounds being stripped of equipment. Knowing that judges will keep the boundaries of lawsuits reasonable, he says, “will be an important boost to our daily freedom.”
Howard calls for state legislatures to pass statutes calling on judges to set such reasonable boundaries. But many courts do so already. A case he cites is actually an example. At a block party in Bayonne, New Jersey, a five-year-old riding around on a bicycle with training wheels bumped a one-year-old, who required stitches. The baby’s parents sued the other parents at the party for not exercising proper supervision. But the New Jersey Supreme Court dismissed the claim, saying that the law does not require parents to defend “honest errors” at a block party—lest people stop giving block parties.
Second, he says that judges should actively manage cases to prevent them from dragging on and wandering into issues beyond the law. Again, courts in some states, including my own, Massachusetts, have exercised such judicial control over the duration and scope of cases.
Third, Howard would set up special courts requiring expertise on the part of judges, notably to hear claims of medical malpractice. An expert health court, he says, would “likely pay more people, with lower average awards and dramatically lower legal expenses.” He is surely correct. But that is an issue not of legalism but of major social policy. It would take something like a political miracle to overcome resistance to the idea.
Howard omits or passes lightly over problems that are probably as burdensome to society as excessive legalization. In public education, for example, teachers’ unions have opposed merit increases and resisted the hiring of new teachers, however talented and well-informed, if they lack formal qualification such as graduate degrees.
State courts handle the overwhelming proportion of litigation in this country. In 2007, 384,330 cases were filed in federal trial and appellate courts, not including bankruptcy cases. In the state courts there were 47.3 million, not including traffic cases. Howard does not mention the greatest current threat to the fairness of state courts and their entitlement to public respect. That is the increasingly expensive political campaigns for judgeships. In most states, judges are either elected or must face the voters after they have been on the bench for some years. The elections used to be routine affairs. No longer. In states such as Ohio, Illinois, and Texas, candidates raise millions—mostly from lawyers and from corporations with interests before the court.
An appalling example of where huge campaign contributions for judges can lead is Caperton v. Massey, a case now before the Supreme Court of the United States. A West Virginia jury awarded damages of $50 million in a tort action against the A.T. Massey Coal Co. While the case was on appeal, Massey’s CEO, Don Blankenship, contributed $3 million on behalf of Brent Benjamin, a candidate for the West Virginia Supreme Court of Appeals, either by himself or through a political action group. (That was 60 percent of all spending in support of Benjamin.) Benjamin was elected. When the court heard Massey’s appeal, Benjamin declined to recuse himself from the case. The court reversed the damage judgment, deciding in Massey’s favor by a vote of 3 to 2. Justice Benjamin cast the deciding vote.
The claim now before the US Supreme Court is that Benjamin’s refusal to recuse himself denied Massey’s opponents the due process of law guaranteed by the Fourteenth Amendment: fundamental fairness. The Supreme Court evidently had difficulty deciding whether to hear the case, considering it at several conferences before granting review, and it is easy to understand why. Does the Court want to get into the business of deciding whether a state judge’s refusal to recuse himself is a violation of the federal Constitution? How much of a campaign contribution should disqualify a judge from sitting on the contributor’s case? If expensive judicial elections are allowable, where do we draw such lines? On the other hand, the claims of elementary justice here seem strong.
Of course the problem of state judicial elections and campaign contributions is not Howard’s subject. But the great dangers presented by such contributions put in perspective Howard’s doom-laden rhetoric about the failure of judges to rein in damage suits. His tendency to hyperbole also leads him to embrace tired conservative rhetoric condemning “activist judges.” He complains about judges “taking control of prisons and causing riots when they ordered children bussed to different neighborhoods. These judges felt just fine,” he says,
making rulings as a matter of law that effectively preempted the legislature. The judge gallops off on a white charger to fix the ills of society but in private disputes sits on his hands, letting people in the courtroom argue anything.
That passage seems to me to compare apples and rutabagas. Bussing, with all its difficulties, was an attempt to find a way of assuring constitutional rights that had long been neglected. As for prisons, the cases he refers to started with orders by one of the great federal judges, Frank Johnson, to make Alabama improve prison medical care so grotesquely inadequate that prisoners’ wounds were crawling with maggots. State legislators privately praised Judge Johnson for doing what they had failed to do.
But perhaps I am unkind to Philip Howard for letting his distress at undoubted examples of legal folly in our society lead him to overstatement. He is right in saying that we have gone too far in trying to compensate for the unfairness of life to individuals. Law does need to consider not just the plight of the disruptive student but the possible cost to the rest of the class, and to the school, of allowing his or her needs to impair the education of other students.
No magical legislation ordering courts to be more sensible will solve the problem. What is needed is more painstaking reform of legislation that puts heavy bureaucratic burdens on our institutions, such as the Privacy Act. Think of how many useless papers you have signed attesting that your doctors have informed you of their care for your right to privacy. At the same time, whether through the press or through judicial oversight, there should be unrelenting exposure of judges to public resentment of legal processes that offend common sense.
That process of judicial education is surely underway. I doubt that any other judge is going to allow two years to pass before dismissing a $54 million damage claim for a missing pair of trousers. Howard is helping the process by this and his other books,2 and by an organization he formed in 2002, Common Good. He can be forgiven some of his hyperbole.
Harvard University Press, 2008, p. 372.↩
The Death of Common Sense: How Law is Suffocating America (Random House, 1995) and The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom (Ballantine, 2002).↩
‘Life Without Lawyers’: An Exchange May 14, 2009