Does the U.S. have too many rules, too many ‘rights’?

We Americans need to implement a “legal revolution, clearing out decades of accumulated law and bureaucracy.”
So writes celebrated lawyer/author Philip K. Howard in his latest provocative book, “Life Without Lawyers,” an impassioned call to overthrow the “false idea that law and rights can substitute for human judgment in daily dealings.”

Howard says we need fewer lawsuits and more common sense. Fewer rules and more personal responsibility. Less caution and more decisiveness. Fewer “rights,” but greater freedom.

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“Law is supposed to be a structure that promotes our freedom,” Howard writes. “We need to snap out of our legal trance. Freedom is not defined by fairness — that’s hopeless, because everyone has a different view, usually tilted toward himself. Freedom is defined by outside boundaries of what is legally unfair. There’s a difference: Setting outer boundaries allows people to make free choices, whether it’s running the classroom, managing the department, or putting an arm around a crying child. … [We must avoid] all the idiocies of central planning. For anything to work properly (including law), humans on the spot must make choices.”

Choices, that is, without inordinate fear of lawsuits or of bureaucratic niggling and state-sponsored punishment.

And we need to accept, Howard writes, that accidents do happen. He quotes at length from a 2005 speech by British then-Prime Minister Tony Blair in which Blair called for his own country to relax its rules.

“We cannot respond to every accident by trying to guarantee ever more tiny margins of safety,” Blair said. “We cannot eliminate risk. We have to live with it, manage it. Sometimes we have to accept: No one is to blame.”

Howard provides such copious examples of rules gone wrong that a reader begins to despair and wonder whether our society is even salvageable. There’s the 40-pound girl being led by police from her kindergarten class, in handcuffs, because school faculty and administrators themselves are not allowed to physically restrain her in any way for fear of lawsuits. There’s the first-grade boy suspended for sexual harassment for kissing a first-grade girl. There are school recesses and playgrounds that allow no dodge ball, no tag — and even, in Broward County, Fla., no running!

Outside of the realm of children, there was the $17 million verdict against the Catholic Archdiocese of Milwaukee because a lay volunteer, delivering a statue of the Virgin Mary to an ill parishioner, hit an 82-year-old pedestrian with her car. There are enforcement actions by the Occupational Safety and Health Administration for absurd “infractions” such as “not posting a hazardous substance form on how to use Windex.” There are the hospital patients whose care is compromised because doctors aren’t allowed to compare notes via e-mail for fear of being sued for violating laws supposedly protecting patient privacy.

“This ‘cult of safety’ has resulted in much greater risk,” Howard told The Examiner in a January interview. For instance, he said, by prohibiting children from playing, for fear of them getting hurt, we have helped create the obesity epidemic that is far more deadly.
Meanwhile, he says litigiousness is a drag on the economy — and he told a Senate hearing on March 16 that to invite even more litigation during a recession, as many lawmakers now are doing through manifold new legislative provisions, is “the equivalent of a dog biting its own wounds.”

Howard isn’t all doom and gloom, however. He responds to all the examples of what’s wrong with plenty of prescriptions for curing the ills. There are lawsuit reform plans, and a proposal to give trial judges more leeway in civil suits, and education-reform suggestions, and ideas for changing and relaxing rules governing the workplace.

For education, for instance, he would give individual schools, and individual teachers, far more leeway to manage themselves, with accountability for performance (the “what” of teaching) but not a gazillion rules, or accompanying paperwork, on how to teach.
Howard ends “Life Without Lawyers” with eight “Principles for daily freedom” (see accompanying box), along with a proposal to create a “shadow government” (see Howard’s own column on the opposite page) to force major deregulatory change.

Howard’s first best-selling book (in 1994) was called “The Death of Common Sense.” These new proposals, he posits, are necessary for common sense’s restoration.