News
Problems with Protocols
Wall Street Journal
Philip K. Howard
In his review of Atul Gawande’s Checklist Manifesto, Philip K. Howard argues that although a careful checklists that ensures cleanliness and safety might be life-saving in an operating room, Dr. Gawande’s theory falls short when he attempts to make the broader point that formal checklists are a key to success in nearly all aspects of daily life – as Dr. Gawande puts it: ”Checklists seem able to defend everyone, even the experienced, against failure in many more tasks than we realized. They provide a kind of cognitive net. They catch mental flaws.” Dr. Gawande goes so far in one example as to suggest that a proper checklist can successfully delegate authority, which he contrasts with an ineffectual centralized bureaucracy. On the contrary, Howard contends that “giving someone the authority to use her judgment means relying on individual creativity and improvisation—the opposite of a checklist.” Howard notes that “bureaucracy is nothing but checklists.” “Accomplishment is personal,” Howard concludes. “Dr. Gawande is right to note that checklists are indispensable in situations where a small mistake can lead to tragic consequences, as in surgery. But his call for a broad checklist regime would be counterproductive—fraught with all the dangers of bureaucracy and excessive law.”
A Congress Worthy Of Deference?
National Journal Magazine
Stuart Taylor, Jr.
In his most recent column in the National Journal, Stuart Taylor, Jr. addresses the “calcification” of American democracy, arguing that “governments at all levels” are seemingly unable to meet America’s challenges. Taking up an argument often made by Philip K. Howard, Taylor states that special interest groups – who, since the 1960s have “pressed governments and courts to elevate their ‘rights’ … over the public good” – are partly to blame for this governmental dysfunction. Taylor quotes Howard who argues that, over time, this deference to self-interests “has created a ‘jungle of law, growing denser every year, that has submerged individual responsibility to do what makes sense under a deluge of rules and rights, and paradoxically undermined everyone’s freedom.’” Taylor quotes Howard further, relating his argument that: “‘Individual responsibility should be the principle by which America reforms its public institutions …. Americans increasingly feel frustrated and powerless because law has corroded the hierarchy of responsibility needed for anything to work.’”
BOOK REVIEW: Getting beyond litigation excesses
Washington Times
Sol Schindler
In his review of Life Without Lawyers, Sol Schindler writes that “the more we inveigh against omnipresent and ridiculous legal requirements the more we seem to become embroiled in them.” Schindler states that Howard “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.” “What [Howard] insists upon,” Schindler continues, “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….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.” In his conclusion, Schinlder notes that what is “truly commendable [about the book] is that despite the heat displayed in [Howard’s] argument there is a complete lack of political venom of the kind found in so much of today’s political discourse.”
Deadline Near for Patient Safety/Liability Reform Proposals
American Medical News
Amy Lynn Sorrel
In an article for American Medical News, correspondent Amy Lynn Sorrel reports on the looming January 20th, 2010, deadline to submit proposals for federal funding of pilot projects aimed at improving patient safety and reforming the medical liability system. Sorrel highlights Common Good-hosted forum, Fulfilling the Promise: Advancing Patient Safety and Medical Liability Reform Innovations, designed “to put applicants on the right track.” The article provides a detailed summary and analysis of the forum, with quotes from many of the forum’s panelists, including Philip K. Howard. “The common thread in all these discussions [on the current medical system] is there is something terribly wrong with the culture of health care delivery that people are so self-protective and bureaucratic, and it’s just not a good system,” Howard states in the article. “If you have a trusted system of justice, you can manage health care delivery with broader goals in mind.”
Books for Christmas
American Spectator
Quin Hillyer
The January 1, 2010, issue of American Spectator magazine includes a list of suggested books to give as gifts this holiday season. Senior editor Quinn Hillyer recommends Life Without Layers, writing that “Howard makes an important case for reining in lawsuit abuse, cutting way back on bureaucracy, and restoring both authority and personal responsibility to teachers, principals, trial judges, and other people in what should be decision-making positions. In short, it’s more good old-fashioned common sense in a world too short on that virtue.”
Poll: Support for Curbs on Malpractice Lawsuits
Associated Press
Ricardo Alonso-Zaldivar and Trevor Tompson
The Associated Press reports that a majority of Americans favor medical liability reform, according to a survey conducted by Stanford University, with support from the Robert Wood Johnson Foundation. The poll found that support “cuts across party lines” and that 59% of Americans believe that “at least half the tests doctors order are unnecessary, ordered only because of fear of lawsuits.” The report also quotes Philip K. Howard, who states that current Congressional health care legislation “addresses one of the problems with the health care system, which is lack of coverage, but it doesn’t address the root causes of an extraordinarily inefficient delivery system.”
Any Malpractice Reforms Should Put Patients First
USA Today
Dr. Kevin Pho, MD
In an opinion piece for USA Today, medical blogger Dr. Kevin Pho, MD, notes that the “U.S. is one of the few countries that uses a jury to decide medical malpractice cases.” Dr. Pho argues that “‘health courts’ would speed up payment of compensation for injured patients.” He quotes Philip K. Howard on additional benefits of a health courts system: “by using health courts, ‘information about each [malpractice] incident…would be compiled and disseminated so that doctors and hospitals could learn from their errors.’”
When the Law is an Ass
Claremont Review of Books
Richard E. Morgan
“Has law become the enemy of liberty in the 21st Century?” Bowdoin College Legal Professor Richard E. Morgan asks. “Most people will bridle at the suggestion; those on the Left will recall the role of law in liberating African-Americans after 1954, while those on the Right will think of the mighty contributions to liberty deriving from legal protections of property and contract. But those on either side who seriously attend to this provocative little book might just change their minds.” The book to which Morgan refers is Life Without Lawyers. Comparing it to Philip K. Howard’s earlier Death of Common Sense, Morgan states that “what makes [Life Without Lawyers] much better than its predecessor is not the hair-raising series of examples he presents, but rather his perceptive accounting of the costs of all this, of what is lost by the encroachment of too much law into too many aspects of our lives. What is lost is liberty.”
New Malpractice Idea in Health Care Debate
Associated Press
Ricardo Alonso-Zaldivar
A release by The Associated Press reports a “boost” for the health courts concept, thanks to President Obama’s “willingness to consider alternatives to medical malpractice lawsuits.” According to the article, proponents of health courts, and a similar proposal by the American Hospital Association, will have an opportunity to to “urge the administration to provide funds for a pilot program” at a Health and Human Services hearing next week. The article cites Philip K. Howard and Common Good as long time proponents of the health courts idea. As Howard explains in the article, “All patients would benefit from such a system because it would create an incentive for doctors to follow clinical best practice guidelines.” The article also quotes Howard in reference to doctor’s fears of being sued: “Defensive medicine is the result of distrust by doctors in situations where they are blamed when a sick person get sicker, but they didn’t do anything wrong.” The health courts concept is intended to alleviate this culture of fear and distrust while still providing fair compensation to injured patients.
Scaling Back Justice?
CBS News - 'Sunday Morning'
Jeff Greenfield
The lead story on CBS News’ “Sunday Morning” (October 18, 2009) was on the impact of legal fear in America. The segment by correspondent Jeff Greenfield touched upon many of the themes explored in Life Without Lawyers, and included an interview with Philip K. Howard. “[L]aw is vital in a free society,” Howard tells Greenfield, summarizing the book’s central thesis. “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.” The report also featured interviews with Congressman Jim Cooper (D-TN), New York City Parks Commissioner Adrian Benepe, American Federation of Teachers President Randi Weingarten, and Dr. Albert Strunk of the American College of Obstetricians and Gynecologists. Weingarten referred to Howard as “one of our heroes,” regarding his work on education reform. “To trust people is what [Howard is] saying,” states Weingarten. “And I think that’s heroic.” Dr. Strunk lauded the health court concept – long advocated by Howard – as an alternative medical liability system that “would help us to remove the fear and anxiety that exists about the current system.”
National Voter Survey: Health Care Reform and the Legal System
Committee for Economic Development & Common Good
Clarus Research Group
A new nationwide poll commissioned jointly by Common Good and the Committee for Economic Development, and conducted by Clarus Research Group, reveals vast public support for medical liability reform, as well as for the prospects of creating a system of specialized health courts. The survey shows that 83% of American voters want Congress to address medical liability reform as part of any health care reform package, and 67% support the creation of health courts. “The American people want the system of medical justice to change,” Howard states in a press release announcing the poll’s results. “They are saying it in very large numbers, and they want it to change as part of health care reform.”
Three Alternatives to Achieve Tort Reform
Health Leaders Media
Cheryl Clark
In a piece for HealthLeaders Media Magazine, senior editor Cheryl Clark considers “three alternatives to achieve tort reform.” Among these is the idea of specialized medical courts or health courts, which Clark notes is “attracting considerable interest.” “One arguing for its consideration,” she continues, “is Philip Howard, founder and chair of Common Good.” The article includes several quotes from Howard, and Clark notes the AMA’s interest in health courts — “in 2007, the AMA ‘developed and adopted’ health court principles to assist state and local governments, insurers, hospitals, and other entities interested in exploring this option for medical liability reform.” Clark ends her piece with a final thought from Howard: “The bottom line, says Howard, is that the medical court idea deserves more consideration. ‘Modern healthcare is so complicated and scientific, it seems irresponsible to give that responsibility to ordinary judges, who would only see four or five cases a year, but to a judge who is dedicated to medical care.’”
Lawyered Up
Book Review Essay
Charles N. W. Keckler
“Life Without Lawyers need not be believed, but it cannot be simply dismissed,” writes Charles N. W. Keckler, a visiting assistant professor of law for the Dickinson School of Law at the Pennsylvania State University, in a critical and lengthy “book review essay.” “[The book] narrates incidents with flavor and verve that draw attention and make one think there may be something to this claim [that there is ‘too much law’ in America], although how much remains to be seen.” Keckler surmises that “Howard’s goal is to make Americans need lawyers less; for fewer sorts of things, less often, and when used, for a shorter period of time,” and that “Life Without Lawyers is like a legal complaint [brought on behalf of] that large and identifiable part of America culturally committed to the proposition that they (and everybody else) should bear more of their own risks, be bound more firmly by both their legal and non-legal relationships, sue and be sued less, and call in the lawyers as a last resort and not a first instinct.”
Review of Life Without Lawyers: Liberating Americans From Too Much Law by Philip K. Howard
The Objective Standard
David Littel
“A political consensus is forming around the ideas of attorney and author Philip K. Howard,” writes David Littel in a review of Life Without Lawyers for the summer 2009 issue of The Objective Standard (Vol. 4, No. 2). “Political figures from Al Gore to Newt Gingrich praise his work.” Littel assures readers that for “those not yet convinced that America’s legal system needs reform, the accounts relayed in Life Without Lawyers will convince them.” While recognizing that “Howard ably shows that American law is in many respects broken,” Littel, however, takes issue with the solutions Howard offers in the book. Specifically, Littel believes that the shift away from “rights-based justice in favor of fairness commissioners is exactly backward.” Littel states that “Howard advocates a government of men and not of laws,” but, Littel argues, the infamous $54-million pants lawsuit relayed in Life Without Lawyers may be an “eloquent illustration of the folly of this ‘solution’” because the case’s plaintiff “was himself an administrative law judge—the closest thing in our current system to a ‘fairness commissioner.’” Littel’s contention, however, focuses on a single facet of Howard’s “solution” — the notion of placing authority at the level of the individual decision-maker — and does not note that it was precisely the current legal system that failed to hold this administrative law judge accountable for his actions.
Philip K. Howard, Atlantic Correspondent
The Atlantic
Philip K. Howard
Philip K. Howard is now a correspondent for TheAtlantic.com, writing on healthcare, civil justice, and other issues. Check the Articles page for his latest contributions.
A Plea to Stop the Legal Insanity
Forbes
Lily-Hayes Kaufman
In her review of Philip K. Howard’s Life Without Lawyers, Lily-Hayes Kaufman – writing for Forbes – relates a personal anecdote where a café employee once told her that it was the café’s policy not to pour customers drinking water from their sink for fear that, “if someone fell sick … they might sue.” “What I encountered in the café is just one example of the extraordinary measures Americans take on a daily basis to defend themselves from the law, which in theory exists to protect the people,” Kaufman writes. In Life Without Lawyers, she continues, Howard illustrates that modern law “‘has infected daily choices with a debilitating legal self-consciousness.’” “People make choices that may be less beneficial to society,” Kaufman writes, “because they may be personally and legally safer. Thus, Americans’ ability to responsibly run a society is being hampered by a fear of the law.” “Howard,” she concludes, “aims to restore responsibility and reliability to the American legal system for the betterment of society. He doesn’t just critique the modern legal system in America, he also offers a framework for improvement. … It is not literally a ‘life without lawyers’ that Howard wishes for America, but rather a life in which lawyers practice a reformed law that is rebalanced to focus on promoting growth and progress for the betterment of society.”
Shall We Get Rid of the Lawyers?
New York Review of Books
Anthony Lewis
Pulitzer Prize-winning journalist Anthony Lewis reviews Life Without Lawyers in the April 9th issue of the New York Review of Books, writing that Philip K. Howard “is right in saying that we have gone too far in trying to compensate for the unfairness of life to individuals.” “Law,” Lewis continues, relating one of Howard’s arguments from the book, “does need to consider not just the plight of the disruptive student but the possible cost to the rest of the class, and to the school, of allowing his or her needs to impair the education of other students.” Later in his review Lewis writes that, “whether through the press or through judicial oversight, there should be unrelenting exposure of judges to public resentment of legal processes that offend common sense.” And in this regard, he concludes, “Howard is helping the process by this and his other books, and by an organization he formed in 2002, Common Good.”
» Related: ‘Life Without Lawyers’: An Exchange
Life Without Lawyers
Financial Times
Richard Foster
Writing in the Financial Times, Richard Foster reviews Philip K. Howard’s Life Without Lawyers by relating it to the likely “new cycle of rules and regulation creation” that will result from the US’s financial collapse and the work of economist Joseph Schumpeter, who argued that, while “‘[t]he problem that is usually being visualised is how capitalism administers existing structures, … the relevant problem is how it creates and destroys them.’” Foster writes: “While Schumpeter was writing about business, we should consider whether his advice can also be applied to our legal system.” Philip K. Howard, he continues, “has been on this trail for some time. … In Life Without Lawyers, Howard points out that the law of unintended consequences is alive and well. That is to say, well-intended regulations often produce the opposite effects from the ones originally sought. Howard urges us to seek ways to achieve the Schumpeterian goal: of course we should create new laws but we should also destroy the dysfunctional laws we already have.” “Schumpeter had it right,” Foster concludes his review, “and so does Howard.”
Life Without Lawyers: Liberating Americans from Too Much Law
New York Law Journal
James D. Zirin
Attorney James D. Zirin declares Life Without Lawyers “highly readable and thought-provoking” in a review for the New York Law Journal. He writes: “The problem, as Howard sees it, is that Americans have not figured out the delicate balance between authority and freedom. Since the 1960s freedom has been redefined as ‘protections against all authority, public or private.’ Hence, concepts such as due process, originally designed to protect the individual against the excesses of the government, now leave open to legal attack almost any adverse decision, whether in the school, the workplace or even the home.” “At a time when we are re-evaluating so many institutions in American life,” Zirin concludes, “why not the law?”
Law! Law! Law! / Imagining Life Without Lawyers
Slate / Newsweek
Dahlia Lithwick
Writing about Life Without Lawyers – in a piece appearing both on Slate (slate.com) and in Newsweek – Dahlia Lithwick relates that “Howard argues that Americans are slowly being choked to death by law. We churn out more than 70,000 pages of new rules in the federal register each year, and the proportion of lawyers in the workforce has nearly doubled between 1970 and 2000.” “In Howard’s view,” she continues, “our reliance on law, lawyers, and lawsuits has turned Americans into fat, neurotic cowards who ‘go through the day looking over their shoulder instead of where they want to go.’”
Life Without Lawyers
Time
Alex Altman
Time recommends Philip K. Howard’s Life Without Lawyers to its readers, writing that it “is a withering critique not of lawyers, but of us: a nation paralyzed by fear, unwilling to assume responsibility, both overly reliant on authority and distrustful of it.” “Law,” the review continues, “is wielded as a weapon of intimidation rather than as an instrument of protection—a problem George Will found significant enough to label Life Without Lawyers as ‘2009’s most needed book on public affairs.’”
Law v Common Sense
Economist
Lexington
“The rule of law is a wonderful thing,” writes the Economist in reviewing Philip K. Howard’s Life Without Lawyers. “But you can have too much of a wonderful thing. And America has far too much law….” The review continues, echoing Howard’s central argument: “The relentless piling of law upon law…does not make for a more just society. When even the most trivial daily interactions are subject to detailed rules, individual judgment is stifled.”
Philip K. Howard on Life Without Lawyers
National Review Online’s Between the Covers
John J. Miller
Philip K. Howard was interviewed by John J. Miller on Between the Covers, a podcast hosted on National Review Online. In the interview, Howard tells Miller: “We do need lawsuits and we do need litigation. But what’s missing is any application of social norms about what’s a reasonable lawsuit and what isn’t….[W]hen people begin to distrust the reasonableness of justice, they act as if they live under a tyrant – they go through the day looking over their shoulders….”
Interview with the Author of Life Without Lawyers
Law Is Cool
Lawrence Gridin
Philip K. Howard was interviewed by Lawrence Gridin of Law Is Cool (lawiscool.com) – “a blog and podcast addressing issues related to law school and the legal field with a Canadian focus” – where he discussed Life Without Lawyers and “what can be done to bring common sense back into the courtroom.” In the first part of the interview, Howard relates to Gridin that the “‘legal self-consciousness’” that has come to grip society “is not in itself caused by too much litigation.” He explains: “‘Not that many people bring frivolous claims. When they do bring frivolous claims, they don’t generally win. But the trouble is that the system of justice allows people to bring those claims, and allows the plaintiffs to maintain them for years. The result is that nobody trusts justice. Because they don’t trust justice, they don’t feel free to do their jobs properly.’”
Litigation Nation
Washington Post
George Will
Pulitzer Prize-winning columnist George Will hails Philip K. Howard’s latest book, Life Without Lawyers, as “2009’s most needed book on public affairs.” The book is required reading, Will argues, because the anecdotes and arguments Howard relates reveal “a fear permeating American life,” one which “aris[es] from America’s increasingly perverse legal culture.” “Law is essential to, but can stifle, freedom,” Will writes, summarizing the book’s central thesis. “What should be routine daily choices and interactions are fraught with legal risk.” “Read Howard’s book,” he concludes, “and weep for the death of common sense.”
A Return To Accountability
Newsweek
Evan Thomas
Writing in his Newsweek column, Evan Thomas draws upon Philip K. Howard’s work in Life Without Lawyers to make the case that America’s “‘hyper legalism’” is negatively impacting both school culture and performance. Thomas writes: “As Howard notes, kids can sense it when a teacher is powerless. By claiming their ‘rights,’ students learn that mere allegation is enough to intimidate a teacher….Students feel they can do whatever they want. The result is chaos and sometimes violence in the classroom, especially inner city classrooms where rule-bound teachers lose control. The only solution is to create a culture of accountability, writes Howard, the author of an earlier best-seller (The Death of Common Sense) on too much law and not enough responsibility in America.”
Too Much Law Guarantees Unfairness
National Journal Magazine
Stuart Taylor
Stuart Taylor provides an early review of Life Without Lawyers in National Journal Magazine, writing that it “makes a powerful case that unless leaders from outside the world of politics overpower the entrenched special interests that dominate both major political parties, even Barack Obama will have little chance of transforming Washington – and no chance at all of fixing our schools, health care, or stultifying legal culture.”