Life Without Lawyers, by Philip K. Howard. New York: Norton and Company, 2009. 221 pp. $24.95 (cloth).
A political consensus is forming around the ideas of attorney and author Philip K. Howard. Beginning in 1990 with The Death of Common Sense and continuing through scores of articles and the work of his organization, Common Good, Howard has depicted an American legal system run wild, and he has advanced a thesis about what must be done. Political figures from Al Gore to Newt Gingrich praise his work. Self-proclaimed pragmatist Michael Bloomberg raves that Howard “offers big-picture ideas for how we can solve entrenched problems.” In a prepublication review, George Will announced that Howard’s latest book, Life Without Lawyers: Liberating Americans From Too Much Law, “surely will be 2009’s most-needed book on public affairs.”
The bulk of Life Without Lawyers is an indictment of American law, covering everything from public schools to administrative regulations to civil lawsuits. As in his earlier books, Howard describes a series of nightmare scenarios drawn partly from his own experience as a practicing attorney and partly from other sources. For example, he tells the story of a family-owned dry cleaning business in Washington, D.C. that was sued for $54 million because of a lost pair of pants. The plaintiff calculated his damages based on a $1,500 consumer fraud penalty multiplied several times over in addition to $15,000 per weekend for a rental car to take his laundry to a more reliable establishment, $542,000 for his own time in pursuing the matter, and $500,000 for mental anguish. The suit was not dismissed but was allowed to linger for two years, costing the business owners more than $100,000 in legal fees (p. 72).
Many of Howard’s examples come from public schools. In one account, a teacher in training placed his hand on the back of an unruly seventh grader to direct him out of the classroom and was sued for $20 million (p. 20). In another example, a teacher dealing with a temper tantrum was forced to call the police to remove a five-year-old girl from school for fear of being sued if she touched the girl herself (p. 18). One of the most chilling accounts describes a seventh-grade student in a Hartford, Connecticut, public school:
He was unusually large and increasingly prone to violence. He began attacking other students without provocation. He kicked the teacher and, a few days later, punched her in the face. The school told the parents that he had to be removed to an environment where he couldn’t injure others. Asserting their legal rights under federal law, they refused. His conduct got worse. He bragged about hitting the teacher, and started throwing furniture. . . . the class practiced evacuation drills so that they could move quickly when the attacks started. But no one at the school had the authority to send him to a special education setting. . . . After almost two years of legal hearings and thousands of dollars of expense, the school finally received the final order in the spring of 2004 that the child was unsuited to be in the classroom with other students (pp. 49–50).
For those not yet convinced that America’s legal system needs reform, the accounts relayed in Life Without Lawyers will convince them. But the book does more than enumerate shocking legal proceedings; it also offers the latest installment of Howard’s philosophy and his prescriptions for charting a new course in American law. Unfortunately, his philosophy and prescriptions for reform are deeply flawed. In fact, they amount to a frontal assault on the idea of rights as the foundation of law.
In every instance, Howard’s proposed solutions amount to a call for “balance” and “reasonableness.” But standing in the way, Howard says, is the notion of individual rights. If only those in positions of authority were not hamstrung at every turn by the pernicious idea of rights, Howard believes, reason and balance would return to human affairs. It is only in discussing rights that Howard’s usually even tone gives way to shrill condemnation: Rights transform people into “fire-breathing dragons”; rights are a “club” with which individuals continually beat the rest of us into submission; and “rights give a sword to one group to wander onto the field of freedom” (p. 53). According to Howard, “the selfish tendencies of a rights regime” are a kind of infection in the body politic leading to chronic disease and dysfunction—the root of our modern malaise.
Because the law has been so preoccupied with this notion of rights, Howard argues, it has failed to take into account the social consequences of legal decisions, and this failure is the essence of the irrationality of today’s law. Legal choices are public choices, and “public choices aspire to balance for the common good, not, generally, to appease someone’s demand for individual rights” (p. 13). The solution is to install in all aspects of American life “a new authority structure.” One element of this new structure would grant judges at all levels of the judiciary broad authority to draw boundaries for the purpose of bringing lawsuits to swift conclusion, not in order to protect anyone’s rights, but in order to impose “balance” based on social norms. Toward this end, Howard proposes the enactment of the following statute: “Judges shall take responsibility to draw the boundaries of reasonable disputes as a matter of law, applying common law principles and statutory guidelines. In making these rulings, judges shall consider the potential effects of claims on society at large” (p. 89).
Howard illustrates his proposed approach by analyzing a case in which he approves of the court’s decision. He describes a 1995 case in which an English court decided whether a swimmer could recover damages for a broken neck from diving into a shallow lake owned by a municipality. In denying the claim, the court
rendered a decision almost unheard of in America. It ordered the case to be dismissed. The lead opinion by Lord Hoffmann declared that whether a claim should be allowed hinged on not just whether an accident was foreseeable but “also the social value of the activity which gives rise to the risk” (p. 16).
Rather than trying to determine who was at fault for the swimmer’s broken neck, the court considered whether allowing the swimmer to recover damages would lead to the banning of swimming in the lake. According to Howard, this was the correct approach. Questions of property ownership, foreseeable harm, appropriate signage, the judgment exercised by the swimmer, and the like should have been secondary, in his view. The primary concern should have been, as it was, the social consequences of the decision. And thanks to the English court’s broad-minded view and concern for the common good, the “socially valuable” activity of swimming at the lake could continue.
Applying this same approach to the case of the $54-million pants, Howard says that “judges must affirmatively protect reasonable social norms of right and wrong. . . . The judge should have called the parties and said something like ‘maybe you have a claim for a few hundred dollars in a small claims court, but you have no right to use justice as a tool of extortion. Case dismissed without prejudice to re-filing elsewhere with an appropriate claim’” (p. 85). In all such cases, Howard insists that justice will prevail if we simply let those in authority—oftentimes judges—decide what to do based on a broad view of social consequences rather than on the problematic notion of rights. It is our fear of authority, says Howard, that has led us to the breakdown of law and loss of freedom.
But Howard’s approach is fundamentally misguided. The various absurd cases and rulings he describes are not the result of a vacuum of authority in American law; they are the result of a failure to properly define authentic rights and to enforce them consistently.
A legal system based on authentic rights would not be riddled with the endless dilemmas described by Howard. In a rights-based system, the case of the $54-million pants would have been resolved (or avoided) by contract. Eventualities such as the loss of clothing by dry cleaners have been handled traditionally by a simple written waiver, agreed upon by the customer as a condition of engaging the service, and limiting the amount recoverable for lost items. A legal system that respects actual individual rights enforces such agreements and has nothing more to say about such matters.
Likewise, authentic rights make cases such as that of the injured swimmer simpler to decide, not, as Howard claims, more difficult. The owners of a lake have a right to permit or prohibit public swimming. If they choose to permit it, “Swim at Your Own Risk” and/or “No Diving” signs are generally sufficient to establish the conditions of use—but such conditions must be enforced by the courts. In the case reported by Howard, the swimmer had, in fact, chosen to disregard such a sign. The proper question for the court was not, “What decision will keep the lake open to the public?” but, “Was swimming permitted by the property owner?” and, if so, “Did the swimmer assume a risk of injury?” Granted, such cases can occasionally be complex. However, the questions that must be answered pertain not to “the common good” but to the rights and responsibilities of the parties in question.
Much of Life Without Lawyers applies Howard’s ideas not to courtroom cases but to decisions made in both public and private institutional settings, such as hiring and firing employees. Because hiring and firing employees can involve “unfairness,” says Howard, dealing with these decisions requires that we appoint what he alternatively calls “fairness commissions” and “review committees” to establish the requisite authority to resolve disputes. For example, to protect against unfairness in public school firing decisions, Howard suggests:
Instead of legal hearings and litigation, give a designated person or committee the authority to review and overturn termination decisions—call it the review committee. This would not be a legal proceeding but an informal process of talking with others in the department to make sure there was a reasonable basis for the termination (p. 145).
Again, Howard ignores the authentic rights in question and instead frames the situation as requiring recourse to an authority. And again he is wrong. Disagreements about the legality of a firing are properly settled not by reference to the opinions of “a designated person or committee” but by reference to the rights of the employer and the employee in light of the contract that established their relationship.
It is not surprising that Howard’s ideas draw praise today. The American legal system seems at times to have gone berserk, and people are understandably desperate for ideas about how to reform it. Howard ably shows that American law is in many respects broken—and then offers his “solution,” which is couched in comforting platitudes about reasonableness and collective welfare. But those who think there is value in Howard’s call for “balance” via “a new authority structure” should think again. A legal system that can decide cases on pragmatic assessments of “social value” might decide one day that maintaining access to swimming holes has social value, and the next day that providing compensation to injured swimmers has greater social value. It can also decide that establishing free access to health care, communal ownership of software patents, easy access to mortgages for all, or the coercive distribution of more of your earnings has social value.
Life Without Lawyers is of some value for its vivid depiction of certain inanities in American law today. But Howard’s proposition that the inanities would vanish if only we would abandon rights-based justice in favor of fairness commissioners is exactly backward. Howard advocates a government of men and not of laws. An eloquent illustration of the folly of this “solution” may be found in the fact that the plaintiff in the $54-million pants case was himself an administrative law judge—the closest thing in our current system to a “fairness commissioner.”