One Lawyer's Case Against the Law

The brief: Lawsuits have replaced common sense, says Common Good's Philip K. Howard.

Want to know what's wrong with this country? Just ask Philip K. Howard, and he'll tell you.

He'll tell you the story of a slide that was popular with the children in a small town in Oklahoma — that is, until one child suffered minor injuries while playing on it unattended. The child's parents made a claim against the town, and to prevent any future legal hassles, the town simply got rid of the slide. Or he'll tell you the story of a gunshot victim who bled to death on the sidewalk outside a Chicago hospital. Because of a hospital rule that was intended to avoid liability, the ER staff wasn't allowed to go outside to bring him in. When it comes to education in this country, he'll tell you stories about teachers who either refuse to use their authority in the classroom or else blindly apply zero-tolerance codes of conduct — anything to avoid a lawsuit.

"We have a health-care crisis, and we have an education crisis, and at the heart of them is the fact that people are no longer free to use their judgment," Howard says. "Legal fear has become a defining feature of our culture. We have a system of justice that people don't trust anymore. It's like a debating society or a sporting contest. People can buy their day in court the way they buy a ticket to the lottery, just for the price of a lawyer. The problem is this: We no longer have law."

That's what's wrong with this country: the law. But what makes Howard's attack so compelling is his own standing in the law: He's a partner at Covington & Burling in New York, where he is a senior corporate adviser and strategist who focuses on mergers and acquisitions. He is also a best-selling author, having written The Death of Common Sense: How Law Is Suffocating America, in 1995, and, more recently, The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom. Now he has formed Common Good (www.ourcommongood.com), a movement to overhaul America's legal structure, with a bipartisan advisory board that boasts a breadth of political figures, from George McGovern to Tom Kean, Paul Simon to Newt Gingrich. "This is like a campaign," says Howard. "But instead of votes at a ballot box, we need endorsers of the concept; and instead of campaign workers handing out leaflets, we need people sending out letters and emails to their friends and colleagues."

According to Howard, America got off track in the 1960s. "In the 1960s, we changed our entire legal structure and philosophy," he says. "We created a philosophy that took away from everybody's freedom, in the name of freedom. We were trying to stop abuses, but now we need to restore our capacity to make judgments about what we think is right."

Howard's case against the law is as clear as it is sweeping: Americans have lost their commonsense ability to draw the line between what is an acceptable use of individual judgment and what is a legitimate cause for legal action. "Justice has become an avenue for attack," he says. "We've forgotten the second half of the law: It's supposed to protect people who do the right thing."

In Howard's view, the misapplication of the law extends to a wide cross section of American society — almost any place where there is a common interest that must be served. But Howard has decided to focus his efforts on health care first. As he sees it, "The health-care system is about to melt down. It occupies an increasing chunk of the national budget — well over $1 trillion. And yet we have 40 million uninsured Americans. We have doctors who are quitting their practices and leaving jurisdictions because of malpractice premiums." Howard quotes one study that says that because doctors see patients as potential plaintiffs, they practice "defensive medicine" — at a cost of more than $50 billion a year.

Part of the solution, Howard says, is a new medical court (not unlike the special patent court) that would be staffed by full-time judges with medical expertise. To rally support for his cause, Howard has cosponsored an impressive health-care conference, entered a legal brief in a case that Common Good considers a particularly egregious example of lawsuit abuse, and penned a torrent of op-ed pieces in places like the New York Times and the Wall Street Journal. "We're going to explain why the health-care system is broken, and then we're going to organize all of the health-care constituencies to demand a new system of medical justice," Howard says. "We're collecting thousands of letters and emails from physicians and nurses describing how the law prevents them from doing what they think is right. There's a lot that can be done to improve health care, but the crisis comes from the fact that people don't trust the justice system."

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