New York Review of Books — 'Life Without Lawyers': An Exchange
April 24, 2009
In the forthcoming May 14 edition of the New York Review of Books, Philip Howard responds to Anthony Lewis's April 9 review of Life Without Lawyers, Shall We Get Rid of the Lawyers?. What follows is an exchange between Howard, Lewis, and fellow lawyer and author, Harrison Sheppard.
Philip Howard begins, "America has had no greater champion of the disenfranchised than Anthony Lewis, and I was pleased that, when reviewing my book...he acknowledged that law can go too far and undermine freedoms as well as protect them." Howard then responds to a few points in Lewis's review. Where Lewis wonders whether most Americans really "tiptoe through law all day long," Howard suggests that Lewis visit any school or hospital in America. "Over 90 percent of doctors admit to practicing 'defensive medicine' (JAMA, June 2005). Over 80 percent of teachers say they practice what might be called 'defensive teaching' (Harris Interactive, March 2004)."
Where Lewis characterizes Howard's proposals as "quite modest," Howard suggests rather that such proposals as giving judges real authority to draw boundaries for what is and is not acceptable litigation require a full-scale overhaul of the current legal paradigm.
Where Lewis accuses Howard of attacking "activist judges," Howard asserts that his point is to the contrary—"that weakening authority is the common goal of right and left, and a main reason public institutions work so badly."
Howard concludes, "Law is the framework of freedom, as Anthony Lewis so nobly has advocated for many years. But that framework requires not only individual rights, but also common choices made on behalf of all society."
Harrison Sheppard praises Howard as an "informed observers of the legal profession who [has] lamented what the practice of law has been doing to America for about the last forty years," but raises a point he claims both Howard and Lewis have missed. Sheppard believes the "root" of the problem of an "excess of law" and the decline of professionalism in the legal field is "the standard promotion, beginning in law school, of a war-making model of legal practice instead of a peacemaking, problem-solving model." Sheppard argues that it is "not tort reform we need: it is reform in the model of legal education and practice of a kind that could save the economy billions of dollars annually, including helping to reduce health care costs substantially."
Anthony Lewis replies thoughtfully to both Howard and Sheppard. Ultimately, Lewis does "not agree with Mr. Sheppard that reform of law schools or the profession can save billions for health care and the economy," but notes that "it is a good idea to think again of what led Justice Holmes to say, 'it is possible to live greatly in the law.'"
Finally, Lewis gives "thanks" to Howard for "forswear[ing] attacking 'judicial activism,'" and concludes, "What I had in mind was the right-wing senators and others who use that epithet to denigrate any judge or nominee who might read the law as something more profound than a bill of lading."
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