by Philip K. Howard. New York: W. W. Norton & Company. 2009. 224pp. Cloth $24.95. ISBN: 9780393065664.
Reviewed by Jonathan F. Parent, Department of Political Science, State University of New York at Albany. E-mail: jp857435 [at] albany.edu.
Claims about the litigious tendency of Americans are nothing new. One often need only open the local newspaper to find a host of columnists bemoaning the latest outrageous settlement where an exorbitant amount of money in damages is ordered by a presumably rogue judge somewhere in the country. We are all familiar with the story of the woman suing McDonalds for millions after apparently having spilled hot coffee on herself and the accompanying narrative about the seemingly endless parade of litigants motivated only by greed. Philip K. Howard’s latest work, LIFE WITHOUT LAWYERS, follows very closely in this genre, though the scope of the author’s criticism of the American legal system is much broader than the usual calls for tort reform that seem to surface periodically in political and legal dialogue.
As suggested by the title, the main thesis Howard presents is that many of the problems that currently plague any number of institutions in the United States – though focusing largely on public education and health care – are attributable to a kind of hyper-legalization where a maze of rules and procedures governing every aspect of professional life paralyses practitioners’ ability to simply perform their duties as “common sense” would dictate. In other words, “[n]othing works – not health care, not schools, not democracy, not our relationship to children, not personal fulfillment – without the freedom to exercise judgment on the spot” (p.13). What law has done, the critique goes, is remove the ability of individuals to exercise this judgment by dictating how every conceivable situation must be handled and, more often than not, resulting in absurd behavior that is, at best, counterproductive, and at worst, truly detrimental.
The first chapter of Howard’s book provides a discussion of what exactly the author sees as the main problem with law as it exists today, again reiterating its tendency to limit the capacity for individual decision-making and adapt to unique situational contexts. In this sense, law is seen as severely restricting, in contrast to its original intent, at least in the Anglo-American tradition, of providing an open field, free from interference from the state, where each individual’s potential is allowed to flourish. Indeed, the author takes an almost libertarian view, complete with the invocation of “freedom” and “personal responsibility,” almost to the point of mawkishness, in lamenting the bureaucratization of everyday interactions. The book’s second chapter takes aim at what Howard sees as the restrictions law places on individuals’ ability to “take risks,” as epitomized by rules severely curtailing the ability of children to simply play outdoors, though [*710] nonetheless finding its way into virtually every other aspect of average citizens’ lives. The chapter concludes with the author’s suggestion that legal rules be altered to “reclaim [their] authority to draw enforceable boundaries of reasonable risk [and] . . . [c]reate ‘risk commissions’ to offer guidance on where to draw the lines” (p.46).
Howard next discusses the legal system’s purported lack of fairness and equality in the sense that only the concerns of self-identified victims are taken into account in judicial proceedings, to the neglect of others involved or the community at large. This view is succinctly expressed in the claim that “[i]ndividual rights, ostensibly protecting against all authority, led to a tyranny of the angry individual” (p.61). Again, several suggestions are offered at the end of the chapter, with the aim of restoring “balance” to decision-making processes involving a number of policy areas. The focus of chapter four is perhaps the most overt criticism of the hyper-litigious culture mentioned above and provides essentially the same panoply of condemnations that can be found in numerous other popular works. Chapter five provides an analysis of what Howard sees as the deleterious effects of overregulation on public schools in America which he blames for out-of-control students, poor academic performance, and the high rate of turnover among grade school teachers. In contrast, the author provides the example of the TEAM Academy in Newark, New Jersey, where teachers and administrators are not bound by excessive regulation and therefore produce better test results and a safer school. Following from this, then, the policy suggestions put forward at the end of this chapter recommend greater autonomy for individual schools, a reduction of “disorder,” and an assessment of schools that focuses on evaluating their “culture.”
Chapter six offers a discussion of the need to evaluate more freely employees in a number of occupations, something Howard again sees as having been lost in a sea of legal rules and procedures. The problem identified here is that, because of an inordinate focus on “fairness” and objectivity, poor performance is allowed to continue unchecked for fear of a legal challenge on the grounds of wrongful dismissal. To be fair, the author does acknowledge that individuals are indeed sometimes the victims of capricious employers and safeguards are needed to prevent such abuse, but that intangible attributes such as “character” and “enthusiasm” ought to be considered in evaluations as well, something the objective logic of the law is incapable of doing. The seventh chapter amounts to a call to arms where wholesale overhaul of legal codes and statutes produced in Washington is called for in order to simplify regulations. Offering the constitution itself as a guideline, Howard suggests that legislation, rather than trying to account for, and provide a procedure dealing with, every possible situation, should instead consist of broad principles with the flexibility to adjust to specific needs. Finally, LIFE WITHOUT LAWYERS concludes by expounding on the need for leadership in order to pursue reform and proposing that accountability by decision-makers is needed in order to replace the current system of over-legalization.
Howard’s book contains little in terms of methodology and consists almost [*711] exclusively of anecdotal evidence seemingly drawn from popular news sources. Indeed, most of the book’s chapters begin with a particular story meant to highlight the specific problem to be discussed; as with the tale of the autistic child in Hartford, Connecticut, who, despite his disruptive and dangerous behavior, could not be removed from his grade school class due to some presumably outrageous legal requirement. These stories also find their way into other parts of Howard’s work, such as the judge who allowed a $45 million tort claim for a pair of pants lost by a laundromat to proceed, though the case was ultimately dismissed, or the oak trees ordered cut down by a town council for fear that their nuts might fall into a local woman’s swimming pool, triggering an allergic reaction in her grandson. What non-anecdotal evidence the author does provide takes the form of studies also purporting to demonstrate either out-of-control litigation or the bringing of frivolous cases, often in the form of medical malpractice (see pp.72, 73). The methodology or specifics of these studies are not discussed, however, and Howard provides no original research in support of his claims. Readers interested in a more scholarly assessment of issues surrounding tort reform and the alleged litigious culture in America would be well-advised to consider the work of scholars such as Mark Galanter (1983), David Engel (1984), and William Haltom and Michael McCann (2004).
It seems clear from the tone, style and subject matter of the book that Howard’s intended audience is most likely the general public rather than specialists in the law and politics field as little, if any, of the canonical work in this area is discussed or mentioned. As well, the methodological weaknesses discussed above and the journalistic nature of LIFE WITHOUT LAWYERS make it unlikely that this piece will be of particular interest to academics in political science or legal studies. That being said, Howard does, at times, touch on some interesting points that could merit more serious consideration, such as the role of law in justifying dictatorial behavior in some regimes – the famous Nuremberg defense of “just following orders” – or the potential value of legislation based on broad principles rather than specific requirements. Unfortunately, these topics are dealt with only superficially, however, and the focus of the book remains an indictment of the supposed hyper-legalization of American culture, presented in a somewhat facile and hyperbolic manner.
Engel, David M. 1984. “The Oven Bird’s Song: Insiders, Outsiders and Personal Injuries in an American Community.” 18 LAW AND SOCIETY REVIEW 551-582.
Galanter, Mark. 1983. “Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) About Our Allegedly Contentious and Litigious Society.” 31 UCLA LAW REVIEW 4-71.
Haltom, William; Michael McCann. 2004. DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. Chicago: The University of Chicago Press.
© Copyright 2009 by the author, Jonathan F. Parent.