AAOS Now

Published 10/1/2009
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Leon S. Benson, MD

The legal terminator

Life without Lawyers: Liberating Americans from too much law
By Philip K. Howard
W.W. Norton & Co., New York, N.Y

When I picked up Life Without Lawyers: Liberating Americans from too much law by Philip K. Howard, my first thought was, “What about Neal and Walter?”

Neal is our practice group’s corporate counsel, and Walter is my first cousin, a merger-acquisition attorney. They are two of the nicest and smartest people I know, respected and trusted by their clients, many of whom are doctors. Life without them would definitely be a downer.

Of course, that’s not what the author has in mind. The book’s subtitle—Liberating Americans from too much law—is a better indicator of its content. This is Mr. Howard’s third book in what could be described as a holy war on the American legal system and its negative impacts on our culture and the very viability of American society. His first book, The Death of Common Sense: How law is suffocating America (Warner Books, Inc., New York, N.Y., 1994), was a best seller and was followed by The Collapse of the Common Good: How America’s lawsuit culture undermines our freedom (Ballantine Books, New York, N.Y., 2001).

Mr. Howard is a partner in a New York City law firm and a periodic contributor to the op-ed pages of The New York Times. He believes that the American legal system is killing America. This theme is repeated and illustrated with gut-wrenching stories that many readers will remember from the news, because all of the supporting material is not just true, but recent and well documented. Doctors in particular will find this book engrossing—dare I say “can’t put it down”—because, of course, we are living the nightmare each day.

The eight chapter titles sound like an eight-step program of intellectual cleansing. Mr. Howard proposes that our current legal system focuses too much upon individual rights at the expense of what’s best for everyone and explores an aspect of this theme in each chapter.

Chapter by chapter
For example, the first chapter, “The boundaries of law” makes the point that the law has no boundaries. The law should define boundaries that proscribe wrongful conduct and protect free choice in all other matters. “Freedom is not supposed to be a swamp of possible claims,” he writes.

In “The freedom to take risks,” Mr. Howard notes that Americans currently have very little freedom to take risks; fear has taken over, and common sense has disappeared altogether from the average American routine. “Accomplishment at all levels, as well as personal growth, requires looking at the challenges of life realistically, not succumbing to the cheap rhetoric of a safety utopia.” Using the history of playground safety rules, Mr. Howard makes a compelling case that risk management has grown to absurd proportions; in some communities, the game “tag” has been officially prohibited due to the fear of lawsuits from accidental injury.

Next, he points out that America needs to restore “the authority to be fair.” The key word in this chapter is “authority.” Here Mr. Howard makes a plea for allowing human judgment to play a bigger role in decision-making. He cites a variety of examples, which would be hilarious if they weren’t true. Instead of imbuing judges and leaders with the authority to make decisions, we have relied on an ever-increasing mountain of rules to define every aspect of our lives and, in the end, have lost the freedom to use common sense and function efficiently.

Chapter 4, “The boundaries of lawsuits” is similar to the first chapter’s theme, but more specific about how our current legal system manages the logistics of lawsuits. The shining example in this chapter is the attorney who sued his dry cleaner for $54 million over a lost pair of pants. In Mr. Howard’s ideal world, a judge would have thrown this case out in one day and charged the plaintiff with court costs. In reality, the case went on for 2 years, cost the Korean immigrant cleaners about $100,000 in legal fees, and turned their lives upside down. Mr. Howard states no one has the right “...to use justice as a tool of extortion.”

“Bureaucracy can’t teach,” and is killing our school systems, he says in chapter 5. The legal requirements that have invaded the teaching process, purportedly to ensure that students are treated fairly, are stifling the individuality inherent to excellent teaching. American schools have turned into concentrated centers of mediocrity, where bad teachers cannot be fired and good teachers lose their motivation.

Expanding on this topic in chapter 6, Mr. Howard notes that we also need to restore “the freedom to judge others.” The legal force behind what he calls “the individual rights movement” has made it virtually impossible to fire employees without protracted hearings and expensive legal proceedings.

In chapter 7, “Responsibility in Washington,” Mr. Howard fantasizes moving the nation’s capital to St. Louis so that the current administration (and all the associated bureaucrats), unable to sell their homes in Washington, will be left behind forever. Citing both his personal experiences in Washington and policy decisions made over the past four decades, Mr. Howard makes a compelling case that most of our leaders in Washington actually display zero accountability to their constituents and are wildly irresponsible with their political authority, focusing instead on their own job preservation.

The book’s final chapter, “The freedom to make a difference,” argues that American leaders should be allowed to use personal judgment more freely and thereby regain their ability to make a positive difference. He points out that lawyers argue to the extremes, while leaders should promote compromise and draw multiple parties together to share a common point of view. Most critical decisions in life are not particularly quantifiable, he notes, and too much rule making and oversight actually produce worse decisions and outcomes.

A bittersweet read?
This book is an easy, fast read, at just about 200 pages. The writing style is clear and, despite the topic, not too preachy. Mr. Howard makes excellent use of current events to illustrate his ideas and consequently the book is quite entertaining. Each chapter concludes with several possible “fixes,” some of which may seem idealistic at first glance. Nonetheless, they add credibility as attempts to prescribe tangible remedies.

Overall, Life Without Lawyers is thought-provoking and can be recommended for that alone. For orthopaedic surgeons, however, it is of particular interest, and I suspect many of my colleagues will find it bittersweet—because so many of us have suffered under a liability system completely out of control.

We are living the examples cited in the text. As we watch the current debate on “healthcare reform,” we are sensitive to a glaring omission—reform of the tort system.

Mr. Howard observes quite rightly that politicians will never pursue policy decisions that are not supported by the lawyers’ special interest lobby. He further makes the case that the legal system presides over human behavior in a zero-sum environment. Tip the balance in one direction, and someone else suffers. Too much attention to individual rights will steal from the rights of the whole community.

Too much regulation of daily human interactions will ultimately paralyze all activities and nothing will get done.

In our society, rules and regulations overwhelm all daily processes. “The power of freedom, as well as the joy of personal fulfillment, comes from spontaneity and invention, not logic and proof,” he writes. Anyone who has ever filled out family medical leave forms, attempted to submit a bill to insurance companies, or tried to make a judgment in medicine without worrying about liability down the road will understand exactly what Mr. Howard is saying.

In the last few pages, “Principles for Daily Freedom,” Mr. Howard lists tangible goals for legal reform, as well as several Web sites, including www.commongood.org, www.newtalk.org, and www.lifewithoutlawyers.com

The good news is that, even after reading this book, I still think fondly of my attorney buddies, Neal and Walter, and I still don’t want to imagine life without them. We all need good attorneys like these two guys. But this book is not really about doing away with lawyers; it’s about restoring sane boundaries and good judgment as the hallmark of our legal system.

Just about everything in this manifesto will resonate quite strongly with orthopaedic surgeons. Just how nonmedical readers react remains to be seen. Perhaps, after reading this book, we should buy a few more copies and put them in our reception areas…

Leon S. Benson, MD, is a hand surgeon in Glenview, Ill., chair of the AAOS Public Relations Oversight Group, and a member of the AAOS Now Editorial Board. He can be reached at leonbenson@mac.com