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Law Blog Q&A with Author, Covington Partner Philip Howard

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  • Law Blog Q&A with Author, Covington Partner Philip Howard

    Covington & Burling partner Philip K. Howard became not exactly a household name, but pretty well known about 15 years ago with the publication of his first book about legal reform, called “The Death of Common Sense: How Law is Suffocating America,” which focused largely on the problem of regulatory and bureaucratic inflexibility.

    In 2002, Howard followed up with ““The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom, a treatise on how fear of litigation cuts against individual choice.

    Both books had their detractors, but both were also widely hailed for highlighting the damaging effects our legal culture, specifically overregulation and too much litigation, have had on both the “common good” and on personal freedoms. Wrote the NYT Book Review about The Death of Common Sense, for example: “Mr. Howard’s argument is fresh, reflecting an impressive combination of wisdom, wry humor, and quiet passion . . . . When we think about ‘reinventing government,’ it’s a good place to start.”

    Fast forward to last week. That’s when Howard’s third book, “Life Without Lawyers, Restoring Responsibility in America“, was released in paperback.

    In “Life Without Lawyers,” Howard picks up on the theme examined in his previous book and examines law’s harmful effects. But in this book, Howard goes a step farther, setting out possible solutions to the thorny sets of problems he identifies.

    We recently chatted with Howard about the book. The conversation, which we’ll split into two parts, was edited slightly for clarity and length.

    Hi Philip, thanks for talking. Tell us about “Life Without Lawyers.” How does it differ from your previous efforts?

    Well, it focuses on individual responsibility, much as my previous books did. But in this book, I really tried to refocus the idea a bit.

    This book is a prescriptive book. I tried to draw the boundaries of law to enable greater freedom. But before that, I show how freedom got lost.

    Okay. So how does your critique differ from critiques offered by tort-reform proponents and others?

    One issue I have with had with proponents of legal reforms, and I’m including tort reform in that, is that it so closely focuses on frivolous lawsuits or excessive verdicts, and the like. My focus really is on effects of too much law or the availability of too much law on people’s individual choices. You can add up the amounts of all the crazy verdicts, and it would still only add up to a tiny fraction of the GDP. But the impact on the functioning of society [of those verdicts] has been transformative.

    For instance, in the medical-malpractice context, doctors go through their days practicing medicine while looking over their shoulders.

    Another example occurs with teachers. Because of an overapplication of due process to the grading and disciplinary systems, teachers have lost their authority to run a classroom. It’s incredibly corrosive whenever any angry person can yank a person with authority and responsibility down into a legal mire. The effect of that is to make everyone gun shy. They become self-conscious in their daily choices. They make decisions based on defensiveness, and they often end up failing.

    In my opinion, the canary in the coalmine is our dealing with children. But it’s moving into other arenas. I was recently at a workshop that McKinsey sponsored on how best to improve flow of pharmaceutical products. Everyone basically agreed that because of the combination of too much bureaucracy and unreliable litigation systems, that the innovation of pharmaceuticals was a tiny fraction of what it would be if people didn’t have to worry so much about being sued.

    In other words, reliable law is essential to freedom because it draws boundaries. It’s up to legislators and judges to draw these lines, but they’re not. Nobody’s drawing these lines anymore, and as a result, Americans really have lost the protection of law. That’s right. Too much law has led to a real denigration in the protection of law.

    So this book, Life Without Lawyers, attempts to draw a road map of how you can restore people’s freedom, which is essential to fixing schools, getting our government functioning again, fixing our health care problems.

    Okay. I’m with you so far. But the easy part is to point fingers at the problems. The far more difficult task is figuring out how to solve them.

    That’s true. So where do we start? Well, I start with judges. It’s extremely important for judges to draw firm boundaries as a matter of law. Say someone brings a lawsuit asking for $45 million for a pair of pants, a judge should say immediately, ‘look, maybe you’ve got a claim in small claims court, but not here. Case dismissed.’

    I think judges, frankly, allow juries to decide too much. Anytime a jury is able to rule on an accident, well, that immediately makes anything that holds the potential for causing or being involved in an accident possibly illegal. And what happens? Playgrounds are stripped of equipment for children to play on, and then that becomes a contributing factor in the obesity crisis.

    So it’s very important for judges, if a legislature hasn’t spoken, to make rulings as matters of law on what’s a reasonable risk. People need to know what they’re going to potentially liable for, otherwise predictability goes away and people take measures that are depriving, like stripping playgrounds. We lack predictability partly because judges aren’t forceful enough in their rulings.

    Okay. But aren’t you going to get cries of judicial activism under this scheme?

    I don’t think so. The relationship between courts and legislatures is a little bit like paper covers rock. The legislature has the larger responsibility and it can draw standards, but if it doesn’t speak, then the judges have the responsibility to address the interstices. There’s a difference between a court saying “we’re going to take over the prison system,” and a court letting a litigant get away with anything. One’s judicial activism and the other isn’t.

    There’s a famous quote by legal philosopher [Jerry Mashaw] which says “like cases must be decided alike.” It’s common to every legal system that works well. But right now, we have a system that lets like cases be decided unlike. It’s served to corrode everyone’s freedom. Now everyone goes through their lives afraid of a law attack.

    Take this recent decision by the Illinois Supreme Court overturning fairly modest limits on non-economic damages on the grounds that it’s violates the separation of powers. Well, it strikes me as a very unfortunate ruling. What else is the point of a legislature if not to make rules on how we govern, and on our judicial system.

    But you have to draw the line at unconstitutional laws, right?

    LBers, that’s all we have time for today. We’ll bring you Howard’s answer and the conclusion of our conversation on Tuesday.

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