Philip K. Howard was in the other day. He’s the New York lawyer who made a splash a decade ago with his thin and infuriating book (infuriating at his topic, not at him), The Death of Common Sense. These were followed by The Collapse of the Common Good and The Lost Art of Drawing the Line.
I read only the first one, but I get his point. Too many decisions are being made by lawyers, and a good deal of those are really stupid decisions. An example is the “zero tolerance” policy for guns in the public schools, in which a working .38 machine pistol, an antique pistol with no trigger spring, a plastic cap gun and a miniature replica one inch long might all be called “weapons” and subject their owners to expulsion. The policy forces a school administrator to be stupid, and not recognize the difference between a weapon, a perceived weapon, an artifact and an obvious toy. Another example is employee recommendations. Employers are now advised not to give any recommendations, good or bad, about employees who are leaving, for fear of being sued for defamation. The policy pressures employers to be mute, undermining the socially useful function of passing on an employee’s reputation to other employers.
Our Sunday op-ed piece, by David Brown of The Washington Post, highlighted the legal molasses that slowed down the rescuers after Katrina. He wrote, “We've become a society of rule-followers and permission-seekers. Despite our can-do self-image, what we really want is to be told what to do. When the going gets tough, the tough get consent forms.” His advice, for next time: If you’re in an emergency, and you know something ought to be done, “Just do it.”
But that is running a risk. What Howard is trying to put together is a movement “to restore the authority to make common choices.” That means the authority of rescuers and responders, of teachers and principals, and—particularly—doctors. That does not mean making it impossible to sue them, Howard said, but it should mean making it much more difficult to win and collect damages. It means raising the burden of proof.
I’m for that.
Respond to Bruce.