Philip K. Howard: A Lawyer Who Says Enough Is Enough

Everyone has heard stories of seemingly outlandish lawsuits: the lawyer who sued a dry cleaner for losing his pants or the Teach for America teacher who was sued for $20 million after holding the arm of a rebellious student. These kinds of stories—sometimes true, sometimes apocryphal—are indicative of a hyperlitigious society. In his new book, Life Without Lawyers: Liberating Americans from Too Much Law, attorney Philip K. Howard argues that the threat of frivolous lawsuits has become debilitating to the nation's healthcare, education, and legal systems. Howard, a partner at the powerhouse law firm Covington & Burling and author of the 1995 bestseller The Death of Common Sense, is chair of Common Good, a nonprofit group dedicated to reforming the U.S. legal system. Howard spoke with U.S. News about the problems with the legal system and what can be done to fix them. Excerpts:

Your book is filled with examples of egregious lawsuits. Do you have any personal favorites that strike you as especially ridiculous?
People who get angry can sue for anything. So there's the guy who sued the California Angels [baseball team] because the promotion on Mother's Day only gave a gift to women over the age of 18 and not to men. There are lots of lawsuits, crazy lawsuits, and most of them fail. But what's important is not the number of frivolous lawsuits or their chances of success but that every American knows that if the neighbor or coworker or parent gets angry, they can drag you through years of legal process just because they're angry. 

You make a number of recommendations on how to rebuild American law, on setting a new goal for the legal system. Which recommendation do you think is most critical?
The goal of law should be to affirmatively protect an area of free choice so that, for example, the teachers can take back control of the classroom and the judges can take back control of the courtroom and doctors can go through their day thinking about what the best care is and not self-protection [from lawsuits]. It's creating that area of free choice that's been lost as law is poured into our daily lives. And you can't fix it by just trying to cut back this law or that law or do tort reform. You have to have the goal of restoring people's freedoms so that they can do their jobs, whatever it takes. So that with teachers, for example, they need to be able to maintain control of the classroom without having to think about filling out forms or going to legal hearings because one angry parent wants to drag them into it. That just prevents them from having their authority. For doctors to be able to focus on delivering the best medical care, they need to feel that if there is a dispute—when the sick person gets sicker—that there's a system of justice that will affirmatively protect reasonable medical judgments. And currently, we have an ad hoc system that generally gets to the right answer after five years, but "generally" is not very reassuring. So the new idea is the change in goal. Not to cut back too much law but to affirmatively restore the area of freedom needed for people to fulfill their responsibilities.

What barriers stand in the way of your recommendations?
Well, there are special interests groups that have an interest in preserving the system the way it is. For example, 60 cents out of every dollar in the malpractice system goes to lawyers' fees and administrative costs. But the main barrier is just the force of inertia. Why is it that Washington never goes back and looks at whether old laws that passed are needed anymore? Inertia is dramatically underrated as a force for evil. And, to make these changes, we need leadership, but, ultimately, we need to shift the tide in pubic opinion. We need to mobilize public opinion.

Could the ability to sue anyone for any reason at all also be empowering?
Well, there is an aspect of human nature that loves the idea of being able to unilaterally pull out your sword and make life miserable for somebody with responsibility. We all feel that way. It just happens to be counterproductive. You end up being driven to the lowest-common-denominator society, where it's a free-for-all. It's not a society that's going anywhere. The one angry parent who demands hundreds of thousands of resources for their special-education child, heedless of the effects on other kids' education, is not healthy for society.

Should President Obama read this book? If so, why?
I hope he does read the book because one of his main goals is to unleash the energy and creativity of the American people, to have them rally behind the banner of "Yes, we can." And if you visit any institution of America today, the dominant instruction is "No, you can't." And the reason is because law has flooded into our daily lives and made it almost impossible to make ordinary choices, in either running your classroom or delivering healthcare without this self-consciousness leading to feelings of self-protection, which in turn leads to a dramatic decline both in personal satisfaction and in our ability to deliver common services. The teacher in the classroom needs to be able to look a student in the eye and be thinking just about the needs of that student—not think about what forms she has to fill out or whether she might get dragged into a proceeding if she kicks the disruptive kid out of the classroom.