- The Washington Times - Tuesday, January 12, 2010

ANALYSIS/OPINION:

LIFE WITHOUT LAWYERS: LIBERATIING AMERICANS FROM TOO MUCH LAW

By Philip K. Howard

Norton, $24.95, 224 pages

Reviewed by Sol Schindler

When Shakespeare wrote, “The first thing we do, let’s kill all the lawyers,” (“King Henry VI - Part 2”), he was not writing immortal poetry; he was penning a sentiment that had been popular with mankind ever since it had invented lawyers. But the more we inveigh against omnipresent and ridiculous legal requirements the more we seem to become embroiled in them.

Philip K. Howard, a partner in the prestigious law form of Covington & Burling and an advocate of legal reform, has now written “Life Without Lawyers: Liberating Americans From Too Much Law,” in which he demonstrates that while law is obviously essential, too much law in the form of codes that cover virtually all eventualities restrain individuality, inhibit entrepreneurship and are obstacles to economic and academic development.

As in many ailments of this decade, much of the problem results from well meaning actions of the 1960s when previously hazy “rights” came to be sharply formulated. Who can say, for example, that assuring a reasonably complete education for handicapped students is not a good thing?

Perhaps it is the moderately gifted student who finds that a large portion of his school day is spent waiting for others to catch up and he is being denied a more complete education because his teachers don’t have the time to give him what he needs. Cannot he then come up with the ultimate complaint that that is not fair?

Mr. Howard feels that we too often negate the responsibility - and with it the authority - of the members of the board of education and the professional educators they hire to apportion the community’s limited resources to its educational needs.

The current state of the American classroom where a teacher is not in control (which is a significant part of the time) results from a rigid adherence to a legal code that is not appropriate to the situation. Horror stories abound. There is the case of a six-year-old girl who went on a rampage in the classroom, tearing up posters, knocking things off shelves. The code of conduct in that school ruled that no one was allowed to touch a student without the student’s permission, and that little girl was obviously not giving permission.

The staff, not knowing what else to do, called the police. The police duly arrived and following their own code of conduct, which ruled that violent offenders of order should be handcuffed, put cuffs on the six-year-old. Could anything else be done to make civic action look more ridiculous?

It should be noted that the codes of conduct of both the police and the school were drawn up by lawyers with the primary aim of avoiding lawsuits; and if the fear of lawsuits is the motivating factor of codes of conduct, little progressive action can be expected of them.

In our health care we have the same situation. Expensive tests are often given not because anyone expects them to divulge anything but to insure that no lawsuits evolve; and eventually high health cost will result in limited health care with benefit to no one.

The author gives us other howlers, such as the case of a volunteer for the Legion of Mary who on a visit to an ill parishioner ran a red light causing an accident which seriously injured the other driver. He in turn sued the Catholic Archdiocese, who though not remotely responsible, had the deepest pockets, and won a settlement of $17 million, money which otherwise would have been spent on charitable causes.

In our own city of Washington, there is the case of an administrative law judge who, in 2007, sued his dry cleaner for $47 million because it allegedly lost a pair of his pants. Ridiculous? Of course, but what is truly troubling is that the case actually went to trial. After two years of preparatory sworn testimony, the case was dismissed by a new presiding judge.

Justice had at last triumphed, but it had cost the family owning the dry cleaning shop over $100,000 in legal fees, and they eventually had to close. We tend to blame educators for the failures in American education. They tend to be so polysyllabically pompous that it’s fun to let fly at them. The author, however, puts the blame on the judicial establishment which has become more of a passive follower of trends rather than a guiding light through newly perceived crises.

What the author insists upon is the acknowledgement that risk is part of life. Facing risk is how we learn things, how we grow up, how we achieve self-confidence. The author states that children’s brains do not fully develop without the excitement and challenge of risk. We must learn to live with risk so that we can conquer it; and the courts and schools, meaning society, must use their judgment, not ever-lengthening lists of prohibitions, to make life meaningful and productive.

The author writes in a casual, conversational style that makes for easy reading. One drawback to this casualness is that it sometimes leads to omissions. For example, the author states that the proportion of lawyers to the population has doubled since 1970. It would be good to know where he got that figure.

What is truly commendable, however, is that despite the heat displayed in his argument there is a complete lack of political venom of the kind found in so much of today’s political discourse. Whether one adores or despises President Obama, in reading this book one gains a better grasp of some of today’s serious domestic problems.

Sol Schindler writes from Bethesda, Md.

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