Scaling Back Justice?

Gavel, scales of justice and american flag. iStockphoto

A Delaware school board granted a reprieve this past week to six-year-old Zachary Christie, who was punished for bringing a Cub Scout camping utensil to school in alleged violation of the school's zero-tolerance no-weapons policy. For critics, that case is just another example of zero brains and lawyer creep. Our Cover Story is reported now by Jeff Greenfield:


In the nation's capital, where laws are made . . . in the very Congress itself where nearly half the members are men and women of the law . . .

. . . a lawyer has come with a message about the law: We need, he says, a lot LESS of it.

"It's very concrete," said Philip Howard. "On the broadest level, we need a fundamental shift in the way we approach law to restore the freedom of people to actually do their jobs."

It is, says Howard, nothing less than a matter of national survival.

"We're at a unique time in our history right now. The country is an economic crisis. The institutions of our society are dead in the water. People have been reforming schools for decades and they just get worse. People keep trying to fix healthcare and it gets more and more expensive. It doesn't deliver better care. So something has to change."

Howard may seem like the unlikeliest of messengers: he's a lawyer with Covington and Burling, a powerhouse international law firm that represents some of the biggest corporations, and nations, in the world.

So why would such a figure publish a book whose title promises "Life Without Lawyers"?

"What we have is a system of justice that allows anyone to bring claims, whether it's reasonable or not, and to press it down to any disappointment, like, for example, a child's grade in a classroom," said Howard.

"Let's start with the title of your book," said Greenfield: "You're not adopting the 'First thing, let's kill all the lawyers' deal, are you?"

"No. It's about getting rid of law in people's daily lives," he said. "Teachers feel that they can't maintain order in the classroom, and doctors go through the day seeing every patient as a potential plaintiff. Camp counselors won't put an arm around the crying child. It's this idea that anything that goes wrong can be a lawsuit, and no one's drawing a boundary about what's a valid lawsuit and what's not."

A "New Yorker" cartoon this past summer neatly captures Howard's message: Says the child, "My Mom says you can sleep in the top bunk if your parents sign a release form."

Congressman Jim Cooper, a Democrat from Tennessee, is one of those legislators who likes what Philip Howard says about the law.

He offered his own take on our "over-lawed" system: "I think we have a surplus of lawyers. We have a shortage of engineers and scientists and teachers and folks who arguably do more good for society."

Howard's argument is no academic exercise. The law, he says, puts its heavy hand on us from our days as children.

"When I was a kid growing up in the streets and the playgrounds of New York the ground was fairly hard and we had monkey bars," recalled Greenfield. "Jungle gyms, I guess we called them. Is that the sort of thing that the law has affected?"

"Playgrounds have been transformed," Howard said. "There is literally nothing in a playground in America for a child over the age of four. There are no jungle gyms. There are no seesaws. There are no climbing ropes. There are no high slides. It's very important for children to learn to understand their own limits, to take care of themselves."

"Would it be fair to say that lawyers have as much to do with modern playground design as designers do?" Greenfield asked.

"I think it's kind of a balance," said Adrian Benepe.

Benepe worked in the New York City Department of Parks & Recreation since the age of 18. Today he's the Commissioner.

"Well, it's really a few safety reasons," said Benepe. "People felt that the playgrounds were dangerous. You could fall. You could break a leg. You could get a concussion. You could get a spinal injury on the seesaws. And probably, after a lot of lawsuits, the standards changed."

And if too much law is making playgrounds less playful, says Howard, it is making our schools downright chaotic, by stripping teachers and administrators of badly-needed discretion: "What we have is a system of justice that allows anyone to bring claims, whether it's reasonable or not, and to press it down to any disappointment - like, for example, a child's grade in a classroom."

"Here's the example that I suspect you've been offered many thousands of times," said Greenfield. "I'm a parent and my kid comes home and says, 'My teacher is treating me unfairly. She doesn't like this political opinion that I wrote.'"

"You go talk to the teacher, you go talk to the principal," said Howard. "But life involves all sorts of disappointments. It even involves unfairness. But when you try to push law down to guarantee fairness in daily relations, what you do is you take away everyone's freedom and you take away the satisfaction of teachers, their ability to do their jobs, etcetera.

"You have to accept the fact that life is life."

"Look, we see it every day, which is one of the reasons why Phil Howard is one of our heroes," said Randi Weingarten, who heads the American Federation of Teachers.

"There's some notion that has seemed to leave us, that teachers have a lot of common sense. And if you actually left it to their own professional latitude and judgment, and their own common sense, they could do a really good job," Weingarten said. "To trust people is what he's saying. And I think that's heroic."

But teachers' unions themselves don't trust the common sense of school administrators. The unions zealously bargain for highly-inflexible work rules, and that make it all but impossible to fire incompetent teachers.

"Common sense" sounds like a great idea. But what if it's YOUR young child severely injured when the swing breaks? Your middle school daughter strip searched on mere suspicion? Your loved on permanently injured after a surgery gone bad?

"It's ironic that a lawyer that works for a big law firm that makes millions of dollars representing banks, insurance companies and tobacco companies is talking about, 'Let's go back to common sense, and have less laws and less regulation,'" said Les Weisbrod, a Houston personal injury lawyer. Until recently, he was president of the American Association of Justice, formerly called the Trial Lawyers Association.

"You know, I have a lot of faith in juries, and in jury trials," Weisbrod said. "I think it's the best system on Earth: A jury of our peers. I believe that our judges work well, which is another thing that Mr. Howard doesn't believe. Mr. Howard doesn't believe that our judges judge, and that our judges are good."

Nowhere is the argument over "over-lawyering" more intense than in the field of medical malpractice.

Critics point to studies, like a 2006 New England Journal of Medicine report, that calls the overhead cost of malpractice litigation "exorbitant," and says the issue is so complicated that claims can result in verdicts unfair to both doctors and patients.

Not so, says Howard. And when it comes to medical claims, he indeed has no faith in juries . . . none at all . . . and wants the law changed.

Today, says the medical profession, fear of lawsuits has pushed medical malpractice insurance through the roof, and forced doctors to practice what's called "defensive medicine," meaning more tests and higher costs.

Howard wants malpractice cases decided not by a jury of laymen and women, but by special courts.

"We're advocating special health courts where if a hospital makes a mistake, that patient's going to get recovery within months, not the average of five years that it takes now," he said.

Dr. Albert Strunk enthusiastically agrees. He is a spokesperson for the American College of Obstetricians and Gynecologists. the specialty that is the most-sued of all doctors and - no coincidence - the specialty with the highest malpractice insurance rates.

Nothing illustrates the problem more dramatically, says Dr. Strunk, than lawsuits that flow from cases of cerebral palsy.

"The overwhelming evidence is that less than 15 percent of cases of cerebral palsy have anything to do with the baby not getting enough oxygen to the brain during labor," Dr. Strunk said. "And that's the premise upon which these liability cases against obstetricians are made, if a baby doesn't do as well or if a baby does have cerebral palsy."

"Sounds like what you're saying is that the way that the law, the adversary system, the jury system approaches these questions fundamentally misunderstands what doctors do, what patients need," said Greenfield.

"Well, again, a rational system is what doctors would look for because it would help us to remove the fear and anxiety that exists about the current system," said Dr. Strunk.

A common sense solution? Not if you talk to lawyers like Les Weisbrod, who says they represent the common man and woman.

"We don't have a special court for plumbers or architects or news reporters or lawyers," said Weisbrod. "And we shouldn't have a special court for doctors. And the fact of the matter is, just because someone's injured in a medical negligence case, doesn't make it a 'medical negligence case,' and doesn't make it a medical negligence case that will succeed."

And the much decried flood of lawsuits is not rising but receding. According to the National Center for State Courts, in the 10-year period ending in 2006, medical malpractice suits were down four percent; product liability claims also down four percent . . . and personal injury claims dropped a surprising 21%.

"There is no empirical evidence that lawsuits are on the increase, or litigation's on the increase," said Weisbrod. "If people are doing things because of a fear of lawsuits, in that regard, it's uncalled for, and it's been trumped up by people like Mr. Howard [who] are creating a so-called lawsuit crisis.

"Ultimately, the purpose is to take away rights of everyday people to address wrongs in front of juries, in our civil justice system. And that's not right. And it's not common sensical, either."

As for the notion of "Life Without Lawyers," well, consider what may be the most famous of all rhetorical assaults on the profession, from William Shakespeare, no less:

"First thing, let's kill all the lawyers!"

That's actually spoke by an outlaw, talking about how to undermine society.

"So, I assume even in the world that you look at there is some place where lawyers belong," said Greenfield.

"Sure; law is vital in a free society," said Howard. "But law is a framework for freedom. It shouldn't be a system of micromanagement where it gets in the way of everyone's daily choices."

"It sounds as if one of the trade-offs we would have to make as a society to get law out of our hair is indeed to accept the fact that sometimes I'm going to be hurt and there's nothing I can do about it," Greenfield suggested. "Sometimes I'm going to be treated badly and there is no remedy."

"That's absolutely right," said Howard.


For more info:
American Association of Justice
American College of Obstetricians and Gynecologists
American Federation of Teachers
Covington and Burling LLP
"Life Without Lawyers: Liberating Americans From Too Much Law" by Philip Howard (W.W. Norton)
New York City Department of Parks & Recreation
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