Posted Mar 24, 2009 06:16 pm CDT
New York City-based litigator and legal reform activist Philip K. Howard has been waging a battle to reshape the U.S. legal system for 15 years. Now, with the collapse of Wall Street financial giants and the promise of new regulations by the Obama administration, the Covington & Burling partner says it’s also time to rebuild the country’s legal infrastructure and abolish ineffectual laws and administrative structures that hinder society—specifically in medicine and education.
In his new book, Life Without Lawyers: Liberating Americans from Too Much Law, one claim Howard discusses is the constant fear of litigation that he says has stricken America’s health-care system and paralyzes teachers and doctors from fully performing their jobs.
“Doctors go through the day defensively,” Howard said in an interview with the ABA Journal. “It’s like they have little invisible lawyers on their shoulders whispering in their ears, causing them to act fearfully and not be reasonable.”
Now is the time for lawyers to enhance the profession by refraining from making any imaginable argument in court, he said. Rather, attorneys need to contemplate the effects those arguments could have on the future conduct of society and judges. One solution Howard suggests in his book is the creation of separate administrative health courts to expedite medical malpractice claims, which currently average about five years to settle, he said.
Schoolyard playgrounds are another daily example of well-intentioned regulations producing effects opposite from the ones originally sought, Howard said.
“Courts are beginning to understand that they need to make rulings regarding tort cases before it goes to a jury,” Howard said. “If any child who falls on a seesaw can sue, all seesaws will be removed from playgrounds because no one wants to take responsibility. If you are going to have a seesaw, there will accidents at times, but if society isn’t willing to take some risks, we won’t have playgrounds.”
The apprehension of drawn-out court battles and costly judgments results in the consistent removal of school playgrounds, which leads to the larger problem of child obesity, Howard added.
“What I’m looking at is what it takes to restore trust by ordinary people in society, so doctors, teachers and others can do what they think is right,” Howard said. “Law should enhance our freedoms, not be counterproductive.”
A list of reviews and future appearances by Howard can be viewed on the website for Life Without Lawyers.