4 Ways To Fix Our Broken Legal System
August 22, 2011 1:46 PM Subscribe

Phillip Howard argues here that rather than protecting our freedoms, the U.S. legal system has actually begun to restrict our liberties and paralyze society. Life as a working professional has increasingly become what Howard describes as "a legal minefield". In this talk from the TED 2010 conference, Howard suggests 4 ways of helping to fix what he deems "a broken legal system."

Another indication about how things have gotten out of balance is shown by the "Profit Per Partner" (PPP) earned by America's Top 100 Law firms - where Profit per partner climbed 8.4% in 2011, in spite of a general recession. Those Top 100 Law firms averaged $1.37 million per firm. And, "Topping the Am Law 100 in PPP and revenue per lawyer was Wachtell, Lipton, Rosen & Katz, the firm known for mergers and acquisitions, which had PPP of $4.35 million, across 84 equity partners, and revenue per lawyer of $2.29 million. Moreover, its 63 percent profit margin led the industry."

By comparison, Apple Computer's profit per employee was $419,000 over the last 12 months

In addition: Economists and others claiming that Patent and Copyright Law is Crippling Innovation

posted by Vibrissae (68 comments total) 18 users marked this as a favorite

Philip Howard is a senior corporate adviser, representing corporations and executives in a wide range of issues, including governance, regulatory disputes, securities litigation, and business transactions. For many clients, Mr. Howard acts as coordinator of lawyers in different practice areas, particularly in corporate and litigation matters that have a significant regulatory or public relations component. Mr. Howard is also one of America’s leading proponents of legal reform, and works closely with public officials, corporate executives, academics, and judges across the country.
posted by Ironmouth at 1:58 PM on August 22, 2011 [6 favorites]

"rather than protecting our freedoms, the U.S. legal system has actually begun to restrict our liberties and paralyze society."

I thought this was obvious to everyone......
posted by y6y6y6 at 2:01 PM on August 22, 2011 [4 favorites]

"The more laws and order are made prominent, The more thieves and robbers there will be."

- Lao-tzu, The Way of Lao-tzu

* * *

"The more corrupt the State the more numerous the laws."

- Cornelius Tacitus, Annals, 2nd c.

* * *

"Where you find the laws most numerous, there you will find also the greatest injustice."

- Arcesilaus
posted by telstar at 2:03 PM on August 22, 2011 [23 favorites]

Begun to restrict our liberties? The Legal System has always been a valuable tool for control in the U.S. Just ask any pre-Civil-Rights Southern judge.

But you're comparing Apple's "profit per employee" with a law firm's "profit per lawyer"? Including the paralegals, clerks, office staff would narrow that gap significantly. It's like saying the movie business's "profit per actor".
posted by oneswellfoop at 2:04 PM on August 22, 2011 [9 favorites]

Tort reform is just a way for corporations to absolve themselves of following any laws whatsoever. It's not to help individuals, it's to keep driving profits upward.
posted by ged at 2:05 PM on August 22, 2011 [14 favorites]

But you're comparing Apple's "profit per employee" with a law firm's "profit per lawyer"?

No, he's comparing Apple's "profit per employee" with a law firm's profit per partner, which is even sillier. Law firms (particularly AmLaw 100 law firms) are pyramids with a few partners at the top -- most of the lawyers are associates, and most of the employees are (as noted) not lawyers at all. The more accurate measure would be to compare profits per partner to Apple's profits per senior manager.

And it's irrelevant anyway, since the PPP measures are self-reported and, evidently, inflated. Law firms aren't Apple, but this comparison is irrelevant.
posted by The Bellman at 2:09 PM on August 22, 2011 [8 favorites]

tl; dw - what are the "4 ways"?
posted by yarly at 2:13 PM on August 22, 2011

1. Judge law by the larger impact on the society, not on the individual effects.
2. Trust is an essential condition to a free society.
3. ??????????
4. (a) Simplify the law.
(b) Restore the authority to judges and officials to interpret and apply the law in accord with "reasonable social norms."

The gentleman's plan is to stop people from being able to have access to justice. He doesn't like due process. Spoken like a corporate defense lawyer.

I advise people to think through what this man wants. Who he works for and how are they helped.

he wants a return to Gilded Age America. I don't want that.
posted by Ironmouth at 2:23 PM on August 22, 2011 [17 favorites]

Howard lays out the following 4 propositions to start addressing these issues:

1. Judge law mainly by its effect on society, not individual situations.
2. Trust in law is an essential condition of freedom. Distrust skews behavior toward failure.
3. Law must set boundaries protecting an open field of freedom, not intercede in all disputes.
4. To rebuild boundaries of freedom, two changes are essential:
a. Simplify law
b. Restore authority to judges and officials to apply law

I don't have access to the video right now, but #1 and #3 seem to ignore the fact that laws are supposed to settle individual disputes.

Regarding #2, doesn't he mistrust the law?

4a: long debate about that here. It's not something easily done or even, in many instances, desireable.

4b: sure.

As others have noted, profits per partner =/= profits per employee.
posted by craven_morhead at 2:30 PM on August 22, 2011

Profits per CEO of Apple: $4.31 billion
Profits per CEO of blue_beetle Inc: $0.0 billion

I deserve a bailout!
posted by blue_beetle at 2:35 PM on August 22, 2011 [2 favorites]

"rather than protecting our freedoms, the U.S. legal system has actually begun to restrict our liberties and paralyze society."

Blackstone said it's "better that ten guilty persons escape than that one innocent suffer", Ben Franklin paraphrased and expanded that to "100 guilty", nowadays it seems we're more comfortable with those numbers reversed.

At this point, I feel that "begun to restrict our liberties and paralyze society" so understates the problem as to not even be a part of the same universe of headlines that I read everyday.
posted by quin at 2:40 PM on August 22, 2011 [7 favorites]

"begun to restrict our liberties and paralyze society"

Certainly our criminal justice system puts far far too many people in jail, then treats them inhumanely while there.

But that's not what this is about. This is some corporate shill arguing for huge corporations and millionaires to be "free" from regulation. Another similar post by this same user was deleted recently, I believe.
posted by drjimmy11 at 2:45 PM on August 22, 2011 [4 favorites]

Craven_forehead: the reason for that is that you want the system to be judged on principles and processes, not outcomes.
posted by yesster at 3:01 PM on August 22, 2011

"Prisons are built with bricks of law, brothels with bricks of religion." --William Blake

As long as we're quoting people...
posted by gimonca at 3:05 PM on August 22, 2011 [3 favorites]

Craven_forehead: the reason for that is that you want the system to be judged on principles and processes, not outcomes.

In essence, this dude does want it to be gauged on outcomes though--large scale outcomes. And if big business and doctors have some bad feelings and I can attach a number with the words billion on it to the point, then wow, its really bad!

but you know what? those billions aren't enough to compensate a person for the loss of a limb or a life.

The process is the way to judge it, not aggregate outcomes like he wants to gauge it by.
posted by Ironmouth at 3:05 PM on August 22, 2011 [1 favorite]

Fuck this guy. He's being massively deceptive pretty much from word one.

The example he gave in the talk of not being able to take two kids on a trip in the teachers car and having to use a bus, sure that's an inefficient use of resources, and maybe the school should have a smaller bus for limited excursions, but are you kidding me? Does this guy expect me to believe that don't see the problem the school might have with putting two students in a vehicle that won't be covered by their insurance, who's condition they have no way of verifying, and letting them get driven for 3 hours each way by someone who's skills and competence as a driver are themselves unknown? That as a lawyer he really doesn't understand the issue there?

If there is an accident there are going to be several hundred thousand dollars of medical bills being tossed between the parents, the parent's insurance, the teacher, the teacher's insurance, the school district, the schools insurance, like a hand grenade with the pin out, and that's why they have to go in a bus. But "Driving a couple of kids to a leadership conference" sounds like a nice, harmless, thing an involved and committed teacher might do, so that's the example he uses.

Also.. "The sinister question, bulging with hidden motives and innuendo "Where are you from". That can be a massively loaded question, as anyone who thinks about it for more than five seconds can realize. It'll tell him roughly who the applicant's parents were, how much money they had growing up, possibly their religious and ethnic background. So no, you don't get to ask that question because you don't get to use those factors to make your decision.
posted by Grimgrin at 3:06 PM on August 22, 2011 [17 favorites]

This is so twisted that I don't know where to start.

At the very least he prefers protecting the collective to the individual which seems to antithetical to the Bill of Rights.

For the rest, most of what he cites are expamples of big law excess, but the remedies he envisions would have great impact on the rights of regular folks.

I know I'm speaking in generalities, but so is he. Once he gets specific, it's all for the oligarchs.
posted by mygoditsbob at 3:09 PM on August 22, 2011 [1 favorite]

So, is this some John Stossel "give me a break"ish braindead libertarian shitfuckery I can pretty much ignore?
posted by fleetmouse at 3:26 PM on August 22, 2011 [1 favorite]

Libertoonian.

Just an extension of the "regulations are killing us" argument that's so in vogue these days.
posted by Benny Andajetz at 3:41 PM on August 22, 2011 [2 favorites]

There ought to be a aw against this.
posted by Kirth Gerson at 3:54 PM on August 22, 2011

No, it's an attempt to clean up the mess the "regulations are killing us" argument has created. What the anti-regulators have they've tried to do is get rid of regulation-by-decree and replace it with regulation-by-lawsuit. It makes the policymakers' jobs a whole lot easier-- why bother setting food safety standards, when you can "let the market take care of it." If anyone gets sick, well, they can sue the store and the grower and the packer, and this will supposedly give them the incentive to ensure that food is safe.

But that results in arbitrary and capricious enforcement in which the actual question of safety takes a distant back seat to paperwork and legal fictions which determine just who can be held "responsible". Proper regulation, established through a political and scientific process, which creates standard practices that can be verified, and which can be adjusted in response to changing situations, is the solution.
posted by alexei at 4:14 PM on August 22, 2011 [4 favorites]

I think broken means "corporations being held responisible."
posted by Ironmouth at 4:14 PM on August 22, 2011 [1 favorite]

"Begun to" restrict our liberties?!
posted by Gelatin at 4:17 PM on August 22, 2011

What the anti-regulators have they've tried to do is get rid of regulation-by-decree and replace it with regulation-by-lawsuit.

Of course, many of these same individuals and their allies are in favor of "tort reform" that abridges the right of the people to petition the Government for a redress of grievances.
posted by Gelatin at 4:33 PM on August 22, 2011 [2 favorites]

the "regulations are killing us".....

Wait a minute...wasn't that way back in Reagantime? So, let me see if I understand...the momentum now is to get rid of ALL regulations? Let the courts regulate...Money owns the
courts....hmmmm...am I close?
posted by eggtooth at 4:34 PM on August 22, 2011

The people I know who favor "tort reform" don't seem to understand that the alternative to civil law making illegal and negligent acts unprofitable is more regulation rather than less. If you can't have ex-post remedies, then you have to have ex-ante prevention or an enormous moral hazard opens up.

I'd like to see physician's malpractice reformed substantially, but I accept the implication of more intrusive measures reducing the opportunity for actual malpractice.
posted by a robot made out of meat at 4:44 PM on August 22, 2011 [2 favorites]

I'm guessing those in favor of tort reform have never had to seek legal redress for a grievous wrong through the courts.

They're also probably of the opinion that if you allow yourself to be harmed by buying a house in Love Canal or eating contaminated food, you get what you deserve.
posted by maxwelton at 6:18 PM on August 22, 2011

But that results in arbitrary and capricious enforcement in which the actual question of safety takes a distant back seat to paperwork and legal fictions which determine just who can be held "responsible". Proper regulation, established through a political and scientific process, which creates standard practices that can be verified, and which can be adjusted in response to changing situations, is the solution.

True, but this is something of a tautology. I'm pro-regulation, but have you ever spent an afternoon browsing the Federal Register? Bureaucracy can be just as big a problem as an absence of regulation. I'm interested in immigration law, and I could supply you with abundant examples of administrators doing a terrible job, not least because they're saddled with terrible regulation.

The question here is how you ensure regulation is good. It's not a simple case of 'more = better'.
posted by anigbrowl at 7:34 PM on August 22, 2011

Thomas Geoghan (who's very much opposed to the regulation-by-tort approach popular with libertarians) argues that the problem is less of a regulatory issue than the result of abolishing interest rate caps and effectively legalizing usury.
posted by anigbrowl at 9:30 PM on August 22, 2011 [1 favorite]

The people I know who favor "tort reform" don't seem to understand that the alternative to civil law making illegal and negligent acts unprofitable is more regulation rather than less. If you can't have ex-post remedies, then you have to have ex-ante prevention or an enormous moral hazard opens up.

robot made of meat: I tend to think the endgame is to deny people both regulation and civil litigation.
posted by wuwei at 10:04 PM on August 22, 2011 [2 favorites]

Proper regulation, established through a political and scientific process, which creates standard practices that can be verified, and which can be adjusted in response to changing situations, is the solution.

There is nothing more subject to the whim of the rich than regulations implemented by the executive branch.

And regulation "in response to situations" denies a remedy to those harmed whose "situations" made the problem apparent.

A citizen should have a right to a remedy if they are wronged. Period.
posted by Ironmouth at 10:42 PM on August 22, 2011 [2 favorites]

If you can't have ex-post remedies, then you have to have ex-ante prevention or an enormous moral hazard opens up.

I remember Moral Hazards, I thought they disappeared during the bailouts though.
posted by fullerine at 5:27 AM on August 23, 2011

Hi folks!

I work as an attorney at Common Good, the non-partisan not-for-profit legal reform center headed by Philip Howard. I'm more than a little surprised at the characterization of Mr. Howard as a Lochner-style libertarian plutocrat, but I suppose that, given the framing of this post and the limited ability of the TED format to convey his message, that's a conceivable reading. It's not right, though, and if you'll indulge me for a second I'll try to explain why.

For starters, Ironmouth, that bio on Covington's site is pretty incomplete. If I read you correctly, you're using it to suggest that Mr. Howard is just an insider shill who's using this pulpit to push reforms that will benefit his corporate clients at the expense of all Americans. Maybe you've already made up your mind in that regard, but I urge you to read his bio on Wikipedia, which does a better job of capturing the full ambit of his advocacy (as well as his stable of supporters; I've never heard anyone suggest that Bill Bradley is a plutocrat, but maybe I haven't been paying close enough attention).

More importantly, the suggestion that we're fighting for a return to the Gilded Age is just flat wrong. If anything, the age we harken back to is the earliest part of the New Deal, when brand-new agencies were vigorously pursuing open-ended regulatory mandates with broad autonomy and few bureaucratic entanglements. Our advocacy is pushing squarely in that direction: empowering government actors at all levels to employ expertise and balance to attack problems as they arise, rather than forcing them to adhere to (and hide behind) mountains of byzantine rules that are often counter-productive and outdated.

Trust me; I understand why you're suspicious of this argument. I have always been and will always remain a dyed in the wool big-government liberal, and when I first interviewed here, I was just as suspicious as you. After having spent virtually the entirety of my voting-age life under the George W. Bush administration, and talk of pro-business regulatory "simplification" immediately raises red flags for me as well. But our message is much more sensible and less radical than you're giving it credit for being. We're merely arguing that, for regulation to be effective, it has to be smart, and the current U.S. regulatory state is dumb, plain and simple.

The example that leads Mr. Howard's book The Death of Common Sense is sort of a nice, small-scale encapsulation of this phenomenon. Mother Theresa attempted to build a homeless shelter in a fire-gutted two-story building in the Bronx in the late 1980s, but was ultimately stymied by the city's requirement that any new housing in the city above one story in height include an elevator, a regulation that would have added over $100,000 to the cost of the project. No one within the city was empowered to sign off on a circumvention of this rule, so Mother Theresa ultimately abandoned her attempts to open a shelter here entirely. This is sort of a dumb outcome: given the choice between 64 more beds for the homeless (and the opportunity to rid a poverty-stricken and crime-ridden neighborhood of a burned out building) and none, it seems reasonable to assume that 64 beds are preferable, whether or not there's an elevator (the nuns who would run the shelter were actually forbidden from using elevators anyway, due to the dictates of their order). But rules are rules, and in attempting to create an ideal housing stock the city's legislators had foreclosed the possibility of creating such a shelter.

So how does the Common Good argument slot in to this scenario? What is our ideal outcome? Ironmouth and others, I think you believe that Mr. Howard is arguing that there should be no building regulation whatsoever here, that the market should just take care of itself, and because this is homeless housing it shouldn't even have to have floors, much less elevators, but that's just not true. There absolutely need to be building regulations, and relatively robust ones at that, but they need to be open-ended enough that, under the proper circumstances, agency actors are empowered to allow deviations from the norm where that deviation is justified, either because the rules didn't anticipate a particular situation, or because the deviation is in keeping with our broader notions of the community purpose the rules were designed to serve. (Equally important, this grant of authority must also include a commensurate imposition of responsibility for the negative consequences of these types of decisions). A line in the building code allowing DOB managers to waive requirements when they see fit and when it's justified, and an agency culture of autonomy and personal responsibility, may have changed the outcome of this situation. It certainly seems like it's worth a try, both here and across the regulatory landscape generally.

Note: I understand the anti-corruption counterargument to this setup. We deal with that in detail on our site, and Mr. Howard has addressed it extensively in his books.

And Grimgrin, ease up there big fella, you may not like the example, that's fine, but if you really think that over-legalization of the teaching profession isn't a problem, them I'm a little surprised that you're not over in the Finnish education thread complaining about that Smithsonian article, which pretty clearly points to greater teacher autonomy as one of the many factors contributing to the success of the Finnish education system relative to the U.S.

I've already written too much, but I'm sure I've failed to address most of the points raised here. Like I said, it's surprising to see our message being so misapprehended, but perhaps it's understandable given the framing of the post. If anyone has any questions of course I'm happy to answer them, either here or via email.
posted by saladin at 7:16 AM on August 23, 2011 [1 favorite]

There is nothing more subject to the whim of the rich than regulations implemented by the executive branch.

Except small town circuit/county judges. At the lower levels, the courts aren't immune to the whims of the rich either. And at least the up-front burdens for paying the costs of enforcement of the law/legal remedy fall essentially to the private citizen under the scenario where US regulations and laws are by and large effectively left to the civil courts to arbitrate and enforce. Often, if you can't afford to appeal a crooked/incompetent judge's blatantly unjust/bad ruling, you're stuck. I know this happens from personal experience. And the corrupt have made a practice, where possible, of keeping local judges and magistrates in their pocket for such purposes since antiquity.

I agree that this guy's proposals seem to be primarily an attempt to take half-baked formulations of a few decent, very abstract, but appealingly common-sense critiques of the legal system and spin them to reach conclusions/policy recommendations that would actually exacerbate the problems (that seems to be a fairly standard think-tank rhetorical tactic, actually). But at the same time, I do think there's been a dramatic push in recent years to effectively relocate more and more of the practical day-to-day administration and enforcement of US law and regulation into the courts, because our court systems generally work to the advantage of the side with the most financial resources to throw into litigation. That leads to better outcomes for industry and corporate interests: settlements for sums that seem large to individual claimants but that don't financially penalize the offending party enough to serve as an effective deterrent from a cost-of-doing-business perspective, or even no enforcement in the majority of cases, since wronged parties may decide it isn't worth the personal expense to bring their legitimate complaint to the courts (effectively putting the law enforcement burden on the private citizen).

And most state and local court systems these days have way too many cases backed up, and are underfunded and resource-strapped as it is.

While this guy's proposals are crap because they ultimately boil down to depriving private citizens access to the courts to pursue legal remedy, the courts are not where US law and regulations should be enforced. Doesn't that violate the constitutional separation of powers anyway? The executive is explicitly tasked with law enforcement. The courts are supposed to settle disputes on points of law that arise during the application and enforcement of law and to provide due process in criminal cases. They're not supposed to be the default enforcement mechanism of the law.
posted by saulgoodman at 7:43 AM on August 23, 2011 [1 favorite]

hmm. on review, what saladin just wrote leads me to think this really might not be just another trojan horse attack on the right of citizens to access the courts after all.
posted by saulgoodman at 7:48 AM on August 23, 2011

I would agree that the law has problems but this guy is confusing the Law with Liability

Being liable for something doesn't mean your breaking the law, it just means you're taking responsibility if something goes wrong. I have the freedom to drive where I want, but, if I run over someone I have to take responsibility for it.

And here's the thing, there are a lot of things you are told you can't do that, legally, is OK. I don't think there is any law against asking applicants where they are from. But doing so can open the company up to more liability. And corporate lawyers who write the policies are more interested in not getting sued then you having a plesant conversation. Sorry. You can start your own company and have laxer standards on interview questions. And frankly, it will probably be fine.

The bus thing is ridiculous, but the other thing is that people don't always write rules for all the corner cases. Maybe if it were just two kids, they could have gotten an insurance policy for school owned cars or whatever. Or gotten wavers from the parents. But they just didn't take the time to do it.

I would agree the law needs to be simplifed. but if you give judges more lattitude you could, ironically, end up creating even more convoluted rules. The reason is that instead of trying to write rules to prevent people from breaking a specific laws, they have to write rules that prevent people from doing anything that could be interpreted loosely as breaking the law.

The people I know who favor "tort reform" don't seem to understand that the alternative to civil law making illegal and negligent acts unprofitable is more regulation rather than less. If you can't have ex-post remedies, then you have to have ex-ante prevention or an enormous moral hazard opens up.

I think what they want is "victim pays". After all, a broken leg is god's punishment, and since you deserved it, it's unfair to make other people pay for your cast. And time off from work is just welfare

True, but this is something of a tautology. I'm pro-regulation, but have you ever spent an afternoon browsing the Federal Register? Bureaucracy can be just as big a problem as an absence of regulation. I'm interested in immigration law, and I could supply you with abundant examples of administrators doing a terrible job, not least because they're saddled with terrible regulation.

Immigration is a huge mess, IMO, because the people affected by it can't vote.

----

Mother Theresa attempted to build a homeless shelter in a fire-gutted two-story building in the Bronx in the late 1980s, but was ultimately stymied by the city's requirement that any new housing in the city above one story in height include an elevator, a regulation that would have added over $100,000 to the cost of the project. No one within the city was empowered to sign off on a circumvention of this rule, so Mother Theresa ultimately abandoned her attempts to open a shelter here entirely.

Let's see, can you think of why the elevator is required? Likely, it's to allow handicapt people access. Hopefully handicapt people will be on Social Security and won't need to live in a homeless shelter, but if you carve out an exception for homeless shelters, then you're doing the opposite of what you want -- you're actually making the law more complex

If you allow easy wavers, then you open the system up for abuse.

Remember, simplifying the law means removing exceptions
posted by delmoi at 8:00 AM on August 23, 2011 [1 favorite]

I work as an attorney at Common Good, the non-partisan not-for-profit legal reform center headed by Philip Howard. I'm more than a little surprised at the characterization of Mr. Howard as a Lochner-style libertarian plutocrat, but I suppose that, given the framing of this post and the limited ability of the TED format to convey his message, that's a conceivable reading. It's not right, though, and if you'll indulge me for a second I'll try to explain why.

Here's the problem. There are no specifics other than "tort reform." And the coded jargon he uses are words usually used by the defense bar to explain why we need to make it easy on the big guys.

Let's break it down:

1. Judge law mainly by its effect on society, not individual situations.

The examples provided come from big business. And his "larger picture" is about business.

2. Trust in law is an essential condition of freedom. Distrust skews behavior toward failure.

The problem is a lack of education, pure and simple. I've engaged in a lot of debates here regarding individual cases. And the thing I see is a lack of understanding of the rules and why they are there and the larger purposes they serve. People will read an article about a person wronged and then get angry when they see the claim was dismissed on summary judgment. I'll read the same article, and see that the case was a bummer from the first. This, coupled with the conservative drive to attack sections of the law they don't like by calling cases decided on those a "technicality" (a terminology that has slipped into our police shows as well), has eroded unnecessarily confidence in the law. And Mr. Howard slips very nicely into the conservative narrative on that issue. Instead of explaining the law and why it works that way, he calmly asserts it is "broken" and finds four ways to fix it, a sort of Covington & Burling Tom Friedman if you will. Mr. Howard needs to explain the law and what he means. This anecdote-based stuff makes me think it is all a trojan horse.

3. Law must set boundaries protecting an open field of freedom, not intercede in all disputes.

The primary job of the judicial branch is to decide disputes between private individuals and other private individuals, fairly and without reference to the economic power of the individuals involved. If it does not, people will settle disputes in ways that are not helpful to the maintenance of a harmonious society. And if the regulations are to be gutted, then where is an individual to turn for relief? "Self-help?"

4. To rebuild boundaries of freedom, two changes are essential:

a. Simplify law

What does this mean? Without any specifics, this says get rid of those pesky regulations that force businesses to act in ways that are to their detriment but the community's long-term benefit. But again, no specifics.

b. Restore authority to judges and officials to apply law

This smacks of let judges open the gates when they feel like it. The example you've given below encapsulates this.

There absolutely need to be building regulations, and relatively robust ones at that, but they need to be open-ended enough that, under the proper circumstances, agency actors are empowered to allow deviations from the norm where that deviation is justified, either because the rules didn't anticipate a particular situation, or because the deviation is in keeping with our broader notions of the community purpose the rules were designed to serve. (Equally important, this grant of authority must also include a commensurate imposition of responsibility for the negative consequences of these types of decisions).

I'm from Chicago. Let's just say I'm a little concerned about what "proper circumstances" might be. Frankly, "proper circumstances" is a stretchy concept that results in one standard for one group, and another standard for another. And having a pile of money usually is a good helper in getting "proper circumstances" approved.

Another concern of mine is Mr. Howard's choice of examples. No doubt he is a skilled appellate litigator. So his examples are harried teachers, yours Mother Teresa. But that isn't what we are talking about, is it? We are talking about business regulation. For every Mother Teresa who wants to put in a homeless shelter, there are 17 businesses also fighting for that "proper circumstances" exception. Whose more likely to get it?

Like I said, it's surprising to see our message being so misapprehended, but perhaps it's understandable given the framing of the post.

Mr. Howard's image problem is entirely his own. He skillfully brings out believable victims, but this really is all about business.

Howard turns to gutting the law as his first solution for Mother Teresa's elevator problem and all others. There are many other ways around your problem--one is to get the elevator company and the construction workers to donate their time. I can't imagine that Mother Teresa couldn't say a word to the Cardinal, who would have a message out in the Diocese the next Sunday--We need an elevator and the manpower to install it.

The other thing is, quite frankly, I don't think Mr. Howard really understands what goes on in these building departments. I can imagine that he rarely represents a client at this rate. As you know, I'm an attorney. My dad is an attorney too, and in his semi-retirement, he is an ALJ in Chicago, working in the building department amongst others. I've had an opportunity or two to watch him in action, and I have to say that the rules are actually not "byzantine" at all. They are rational, make sense and are administered fairly. What some business owners don't like is that they have to comply with the rules.

Finally, if someone could explain to me why the defense bar is so anxious to destroy their own line of business, I'd also like that.
posted by Ironmouth at 8:09 AM on August 23, 2011 [4 favorites]

If anything, the age we harken back to is the earliest part of the New Deal, when brand-new agencies were vigorously pursuing open-ended regulatory mandates with broad autonomy and few bureaucratic entanglements. Our advocacy is pushing squarely in that direction: empowering government actors at all levels to employ expertise and balance to attack problems as they arise, rather than forcing them to adhere to (and hide behind) mountains of byzantine rules that are often counter-productive and outdated.

The whole point of rules is that they are not wholly open-ended, nor do you wait to formulate them until the problems arise. The idea of rulemaking is that you have a set of government experts who, with the help of public commenters, address a problem which Congress has identified, and determine what rules should govern it in advance. If what he wants is to speed up the rulemaking (and rule enforcement) process and make it more agile and responsive to change, then I'm all for it. But I share Ironmouth's suspicious of this enterprise. By "open-ended" and "dealing with problems as they arise," he probably means "don't regulate the big banks; just bail us out when we need it."

I also agree with Ironmouth that there are many regulatory regimes at all levels of government that are working quite well -- you just never hear about them because they work.
posted by yarly at 8:30 AM on August 23, 2011 [1 favorite]

empowering government actors at all levels to employ expertise and balance to attack problems as they arise, rather than forcing them to adhere to (and hide behind) mountains of byzantine rules that are often counter-productive and outdated.

We are told about these "byzantine rules." Could I get an example? I know my way around the CFR.
posted by Ironmouth at 8:36 AM on August 23, 2011

And Saladin, I think you've been bamboozled. They don't want regulation to be "smart"; they want it to be non-existant (or at least, not impinge on their profits.) If you can show me an example of a regulatory change championed by Common Good that would help citizens/consumers/the environment/etc, while imposing costs on business/doctors/banks/etc, then I might be a little more confident.
posted by yarly at 8:38 AM on August 23, 2011

Seriously, the Common Good website says "Restore Boundaries to Lawsuits."

And the problem is this--these companies refuse to see that paying for damages they have caused via negligence is something they are supposed to do.

I'm very disappointed in Mr. Howard, and the more I read, the more I see this as "tort reform" pushed by a guy whose contributed some money to a few Democrats.
posted by Ironmouth at 8:50 AM on August 23, 2011 [2 favorites]

In case Ironmouth's Chicago example isn't ringing, we're cautious of practical common-sense exemptions to building codes.
posted by a robot made out of meat at 9:24 AM on August 23, 2011

The other thing is that Howard blames the law for insurance excesses--did a court require any of the complained about bus rides? No. Insurance companies did in reaction.
posted by Ironmouth at 10:01 AM on August 23, 2011

Oh my, quite a reaction.

Ironmouth, I'll try to address your points in turn, because they seem to be representative of the group's at large.

The examples provided come from big business. And his "larger picture" is about business.

Were we watching the same video? Virtually all of his examples under this heading were from health care and education. I'm really not sure how to address this point.

The problem is a lack of education, pure and simple. I've engaged in a lot of debates here regarding individual cases. And the thing I see is a lack of understanding of the rules and why they are there and the larger purposes they serve. People will read an article about a person wronged and then get angry when they see the claim was dismissed on summary judgment. I'll read the same article, and see that the case was a bummer from the first. This, coupled with the conservative drive to attack sections of the law they don't like by calling cases decided on those a "technicality" (a terminology that has slipped into our police shows as well), has eroded unnecessarily confidence in the law.

I think you may have this exactly backwards; the claim isn't that people don't trust the law because they see outcomes and find them inequitable (due to their lack of understanding of the underlying legal principles involved), it's that people live their lives in fear of lawsuits, which alters their behavior in myriad negative ways.

And Mr. Howard slips very nicely into the conservative narrative on that issue. Instead of explaining the law and why it works that way, he calmly asserts it is "broken" and finds four ways to fix it, a sort of Covington & Burling Tom Friedman if you will. Mr. Howard needs to explain the law and what he means. This anecdote-based stuff makes me think it is all a trojan horse.

I think you may overestimate the viability of the TED format to achieve this purpose. I've not seen many TED speeches, but those I have seen tend to be pretty anecdote-driven and conceptual. An 18 minute talk delivered to non-lawyers on legal reform is necessarily going to be a bit glossy. If you'd like a more concrete discussion of discrete legal areas, I could point you to our work with the Harvard School of Public Health on specialized health care courts, an attempt to slowly move our health-care liability system in the direction of Sweden's no-fault approach.

The primary job of the judicial branch is to decide disputes between private individuals and other private individuals, fairly and without reference to the economic power of the individuals involved. If it does not, people will settle disputes in ways that are not helpful to the maintenance of a harmonious society. And if the regulations are to be gutted, then where is an individual to turn for relief? "Self-help?"

Surely we don't disagree here. The question seems to be defining what constitutes a legitimate dispute in the first place. I'm not sure you've addressed that question here, but I'm curious to know whether you see any problem with the ability of private parties to hold the threat of a lawsuit over the heads of others (as in Mr. Howard's example of the teacher raising the student's grade) and whether you believe that should (or even can) be changed.

What does this mean? Without any specifics, this says get rid of those pesky regulations that force businesses to act in ways that are to their detriment but the community's long-term benefit. But again, no specifics.

Again, it's just a TED talk. But given that the majority of the talk was dominated by references to education law, I'm not sure that your gloss makes much sense. What big business interests are implicated by increased teacher autonomy? You keep insisting that what we're "really talking about" is business regulation, but I'm not sure why, given either the content of the speech or virtually anything else he's written on the subject in the last 20 years.

I'm from Chicago. Let's just say I'm a little concerned about what "proper circumstances" might be. Frankly, "proper circumstances" is a stretchy concept that results in one standard for one group, and another standard for another. And having a pile of money usually is a good helper in getting "proper circumstances" approved.

As I mentioned above, there is an obvious and longstanding anti-corruption and anti-bias rationale to inflexible rules. But as Mr. Howard mentions in the talk, rigidly binding the hands of decisionmakers cuts both ways.

The other thing is, quite frankly, I don't think Mr. Howard really understands what goes on in these building departments. I can imagine that he rarely represents a client at this rate. As you know, I'm an attorney. My dad is an attorney too, and in his semi-retirement, he is an ALJ in Chicago, working in the building department amongst others. I've had an opportunity or two to watch him in action, and I have to say that the rules are actually not "byzantine" at all. They are rational, make sense and are administered fairly. What some business owners don't like is that they have to comply with the rules.

Funny you should mention that! We're currently in the process of helping a major American city (at the invitation of its liberal administration) audit and reform its municipal codes. Unfortunately, I don't think I'm at liberty to publicly discuss the details of the project, which is a shame, because we've gathered some pretty compelling examples of rules that are quite literally impossible to comply with. Suffice it to say that we've done years of research on this very subject, and the results were fairly troubling (at least as far as this particular city is concerned).

I'm very disappointed in Mr. Howard, and the more I read, the more I see this as "tort reform" pushed by a guy whose contributed some money to a few Democrats.

You keep circling back to the idea that this is all tort reform, but Mr. Howard specifically rejects the entire concept of tort reform in his speech as an abject failure. Could you explain why you think this, because I'm not sure I understand?

Finally, yarly, I appreciate your concern, but I'm pretty sure that in my months of working here, my dozens of conversations with Mr. Howard and Common Good staff and my research and writing on behalf of this organization, I've come to understand the mission and purpose with slightly greater insight than you were able to glean from watching one 18-minute TED talk.
posted by saladin at 10:12 AM on August 23, 2011

Also, apropos of nothing, today is the day that my professional ambitions were realized: I was paid to argue on Metafilter.
posted by saladin at 10:18 AM on August 23, 2011 [1 favorite]

> Howard turns to gutting the law as his first solution for Mother Teresa's elevator problem and all others. There are many other ways around your problem--one is to get the elevator company and the construction workers to donate their time. I can't imagine that Mother Teresa couldn't say a word to the Cardinal, who would have a message out in the Diocese the next Sunday--We need an elevator and the manpower to install it.

Ironmouth, you know I love you but I think you're mistaken about this. It's true, in this case the nonprofit could seek a corporate or public donation - which might or might not be met, because both corporations and the public have limits to spending. But it's not 'gutting the law' to allow some flexibility in how the code is administered.

Why does the city of New York want an elevator in this hypothetical building? Because it's open to the public, and some of the public are disabled and have difficulty with stairs, so we don't want to discriminate against homeless people who have lost the use of their legs to some degree, or subject them to the humiliation of being carried upstairs. And indeed, homeless people are more likely to have those kinds of problems - because they may have to sleep on the ground, don't get regular access to medical care, many of them take drugs that damage their circulatory systems or intoxicate them sufficiently to result in injuries, and so on.

On the other hand, it's clear that a minority of the people who come to use such a shelter are disabled. And if there are beds on both the first and second floor, then the ones who can't go up the stairs could sleep on the first floor, and wouldn't need to go up the stairs. One could even try to fill the beds on the second floor with able-bodied people to ensure that there are always some vacant beds on the first floor. If we consider the probability that any given person arriving at the shelter is unable to walk up the stairs, and multiply it by the probability that there won't be any beds available for them on the first floor, it seems like the probability of not being accommodated at all is pretty low, whereas $100,000 in extra costs for an elevator is quite a lot of money. Wouldn't it make more sense to apply Learned Hand's B > PL test to check whether the burden of installing an elevator in a two story building actually outweighs the probability of incurring liability?

> The whole point of rules is that they are not wholly open-ended, nor do you wait to formulate them until the problems arise. The idea of rulemaking is that you have a set of government experts who, with the help of public commenters, address a problem which Congress has identified, and determine what rules should govern it in advance.

Of course, but administrative officials are often granted broad discretionary powers because foresight is limited, and situations or cases that were not foreseen at the time the rules were drafted arise on a regular basis. We can't be full-time utilitarians because we're not good at anticipating all the ramifications of our decisions, but we can't be full-time deontologists either, for the same reason. You can have consistency or completeness, but not both at the same time.

I mean, if we don't want administrators or judges to have any discretion, why not just dump the common law altogether and move to a pure civil law system? If the rulemaking process were as reliable as you suggest it to be, then civil law jurisdictions should be free of corruption and miscarriages of justice.

Judges aren't perfect, by any means, but to be frank I trust courts far more than I do legislatures.
posted by anigbrowl at 11:06 AM on August 23, 2011

I don't trust any systems more or less than any others in general, on an a priori basis--although I'd argue there is reason to be skeptical of some aspects of our various judicial systems for the fact that certain kinds of judges enjoy lifetime appointments and can and are appointed on a partisan political basis. Interestingly, that makes them less susceptible to the corrupting effects of short-term electoral political influence, but it also makes them less responsive to popular will and more difficult to hold accountable in general when they're corrupted, as we've discussed here on MeFi before.

I say any system is as potentially susceptible to corruption as any other, given the right conditions; it was the deliberate setting of the various systems of governance into mutually-limiting, oppositional relationships that was originally meant to help check any potentially corrupting influences in the process. None of the branches, in isolation, should be privileged or relied upon more than any other, IMO, but each should be constrained--and at the same time, fully empowered--within its proper, constitutionally established functional domain.

When the legislature fails to provide adequate regulation with practical enforcement mechanisms against what perhaps ought to be illegal market practices or abuses, or when the executive fails to effectively implement those regulations and enforcement mechanisms, the result will inevitably be an increase in civil litigation, as the civil courts will offer the only legal remedies available. So the problem here might just as likely not be tort law, but the power vacuum our increasingly toothless regulatory and enforcement systems are leaving in their absence.
posted by saulgoodman at 12:02 PM on August 23, 2011

actually outweighs the probability of incurring liability
I should have said 'probable cost of liability,' but you get the idea.
posted by anigbrowl at 1:13 PM on August 23, 2011

Here's the problem.

Mr. Howard did not give full disclosure at the beginning of his talk. He did not tell us who he was, who he represented on a general level, or that he was a partner in a major U.S. law firm. A few lines would have sufficed. When a player on that level comes to give a talk on legal reform, he or she should give full disclosure. Mr. Howard made no disclosure whatsoever. He's a guy in a nice haircut with a blue blazer and some khakis. This is by far his biggest mistake. And it rightly concerns me that this is a trojan horse for tort reform because he did not give that full disclosure. I'd have a lot better time listening to his points as a solid-pro business point of view if he would just give full disclosure.

This is compounded by his talk. Rather than give a whole discrete low-down on what he was doing, he could have broken it down to one of his points after giving the four main ones, and then provided concrete examples. He did not. I don't see how he can complain.

But let's turn to your main points:

The examples provided come from big business. And his "larger picture" is about business.

Were we watching the same video? Virtually all of his examples under this heading were from health care and education. I'm really not sure how to address this point.

Let's look at his opening statement:

"If you run a business its hard to do much of anything without calling your general counsel. Indeed there is this phenomenon now where the general counsels are becoming the CEOs. Its a little bit like Invasion of the Bodysnatchers. You need a lawyer to run the business because there is so much law."

This is the first thing out of his mouth. And since the vast majority of regulations apply to businesses, I find his attempt to steer the conversation to discussions of more noble victims to be disingenuous. And although he turns to discussing the noble teachers, it isn't long until we get back to the meat--the struggles of the highly-paid pediatrician and his inability to ask certain questions at an interview for Covington and Burling. His other examples in the talk are the health care industry, and manufacturers warning labels. This is industry and business he is discussing, which is where most of these regulations are.

I'd like to turn to another issue, his serial exaggeration. He overblows his case. He creates an existential crisis where only a regular one exists. He argues that we are "hoping we can judge any dispute against the standards of a perfect society." I don't know if you've ever litigated a case, but his description is patently wrong. Our rules of litigation squarely acknowledge the humanness of the legal situation and have everyday rules for handling it. Once you get a real case in your hands, you can see it is a lot more about the practical. He also argues that "people" are made afraid to make decisions? Who are these people? I am afraid, yes--but that's because of my duty.

And his description of teachers being threatened by 78% of their students with a law suit when they are disciplined. What we never hear are how many people actually sue on disciplinary grounds. That would be the key stat, no? Why can't he give us that? Because he knows they don't. Seconds after throwing out that factoid, he admits that they don't usually sue.

But none of these examples are examples of the law gone bad. None of the examples are stories of courts ordering anything. They are stories of overlawyering. Nobody made anyone put those warning labels on the items, it was the lawyers who did it. And it was the insurance companies who demanded that people ride in a bus, not the law.

And that is at the core of this--overlawyering. How does BigLaw justify their sky-high bills? By providing legal advice that is designed to protect against lawsuits that have already happened. It is excessive. If it is ridiculous to have a "don't fold baby in stroller" label, why advise your insurance company to demand such a label? Why advise them to force the children into a bus rather than a ride in a car? It isn't the courts or the law.
posted by Ironmouth at 1:33 PM on August 23, 2011 [3 favorites]

And one more thing: I hope I'm not sounding cantankerous in my replies here. I find this discussion genuinely interesting and professionally rewarding, and really appreciate the criticism and feedback. I'd be using emoticons to soften my tone if the idea of emoticons didn't fill me with despair.

Not at all. The discussion is excellent. We are glad you are providing insight into your organization. This is the purpose of Metafilter.
posted by Ironmouth at 1:46 PM on August 23, 2011 [2 favorites]

it's that people live their lives in fear of lawsuits, which alters their behavior in myriad negative ways

The "people" who live their lives in fear of lawsuits are mainly corporations who do not want to have to deal with the fear of big tort suits. Look, if your organization did not ALSO want to limit access to the civil justice system, then I might think you knew what you were getting into. But your organization wants to both limit access to the justice system for individual citizens, AND it wants to limit the role of rulemakers. The result is -- industry gets to do what it wants, and citizens have little recourse, and sophisticated players (like big banks) get to assert their influence through campaign donations, the revolving door, and lobbying campaigns.

I don't doubt that there are many, many byzantine regulations that should be amended. I can think of a few regulations I would just delete myself if I had the power. But Common Good comes off as anti-government and anti-regulation in general. I would be trusting of an organization that had an in-depth knowledge of and investment in the particular industry for which they are advocating a specific kind of regulatory reform. Instead, Common Good is advocating "less law = good law" in general. This is highly suspect to me. In some areas, we need A LOT of law, and it is going to be complex and very invasive. E.g., regulating nuclear power plants and elevators. In other areas, we need less law, and open-ended, local control is probably more justified. E.g., education and classrooms. There is no one size fits all when it comes to regulatory regimes. But Common Good seems to think that the "common good " = less government. Of that, I am highly suspicious.

I get that you are an idealistic young lawyer and believe in the mission of your organization. That's a good thing. But for better or for worse, you need to understand that you have a HUGE pr problem. Any in-the-know liberal even tangentially involved in the civil justice and regulatory world is going to take one look at the Common Good website and have exactly the same reaction that Ironmouth and I are having.
posted by yarly at 2:27 PM on August 23, 2011 [1 favorite]

Oh and also, regarding the Mother Theresa elevator example (great example by the way - I would like to see documentation that it actually happened ... ) as the Law & Economics folks have taught us, you have to consider the transaction costs. A city does not have an infinite budget to analyze whether every single building should have an elevator. Instead, it sets a general policy it decides promotes a good it wants (access to buildings using elevators) and imposes a blanket requirement. Forcing it to renegotiate the issue every time would be ineffecient. The fact that this creates some suboptimal results in isolated cases does not negate the fact that, on balance, the regulation may be an efficient way to promote a desired end.
posted by yarly at 2:31 PM on August 23, 2011 [1 favorite]

The elevator incident happened in 1990; here is the contemporary NYT report. Apparently, the city offered to pay for the elevator but the missionary order in question eschewed labor-saving technology and sought a waiver instead, on the grounds that it would be waste of money. NYC's disability commissioner pointed out that Americans found the possibility of being carried up and down stairs incompatible with ordinary dignity.

Philip Howard has been arguing for a long time that such results stem from an excess of regulatory prescriptions at the expense of regulatory authority; Christopher Hitchens ascribes it to a religious pathology that elevates puritanism over practicality.

So it appears that the actual issue here was not so much the cost of the elevator as a question of whether one should be forced to have an elevator in a publicly accessible building whether one wants it or not, somewhat like Lochner in reverse. One could, of course, argue that it was actually a win for Philip Howard's approach insofar as no litigation took place but the missionaries agreed to explore opportunities elsewhere rather than butt heads with the city administrator. A lot depends on whether one sees the non-construction of the homeless shelter as an opportunity cost or a disaster waiting to happen - which in turn might depend on whether one is Catholic, whether one grew up in New York, and so on. My understanding is that inner-city conditions in NY were at a nadir back then, but I'm not all that familiar with the city's history.
posted by anigbrowl at 3:39 PM on August 23, 2011 [1 favorite]

So it appears that the actual issue here was not so much the cost of the elevator as a question of whether one should be forced to have an elevator in a publicly accessible building whether one wants it or not, somewhat like Lochner in reverse. One could, of course, argue that it was actually a win for Philip Howard's approach insofar as no litigation took place but the missionaries agreed to explore opportunities elsewhere rather than butt heads with the city administrator.</em

I guess my point is this. Did Mother Teresa underestimate the cost of setting up a shelter there? Why in that location? Why must there be two floors? Why not purchase another building where an elevator already was?

These are normal questions a business must ask.

I'm also pissed at the use of "Mother Teresa" as a case study. Seriously, you can't give me a regular example that doesn't involve a sainted woman working for nothing? It smells really bad. Its an appeal to emotion not to reality.
posted by Ironmouth at 4:46 PM on August 23, 2011

That makes perfect sense - after all, hard cases make bad law, and an excess of simplicity can be just as bad as an excess of complexity. We've been seduced by that repeatedly in California, passing laws such as '3 strikes and you're out' and the anti-gay-marriage proposition 8, both of which were sold to the public on the basis that clarity would lead to consensus. And that temptation to simplify the problem out of existence is always thee whenever we're confronted with a corner case - doubly so, when the debate is being placed in front of the general public rather than an educated minority of lawyers.

But there is a lot of evidence for discretion in the aggregate too. Look at sentencing guidelines, for example. They were supposed to correct sentencing disparities that disproportionately affected some defendants (usually poor and/or African-American) by specifying reasonable base sentences and upward or downward departures from those bases for aggravating or mitigating circumstances. Unfortunately, they just ended up embodying a great many of the prejudices of the day until they were declared optional rather than mandatory after Booker v. Washington. Now I'm not saying that they necessarily made the situation any worse than it was during the arbitrary sentencing regime that preceded it, but rather that it served to lock in the negatives of poorly-written illegal drug legislation under a varnish of procedural equality.

Meanwhile, there's a (mistaken) perception among the general public that it's illegal or otherwise impossible to sue the Federal government over anything - and while you and I know that to be incorrect, the high thresholds that must be surmounted to bring a successful Bivens reinforce that misconception. Just as people fret that nobody in business ever goes to jail for abusing their privileges, a like perception exists about the unaccountability of public officials. You've seen it in discussions following police shootings, where the training and circumstances may more than justify any individual officer's action but the public perception of institutional bias gets in the way.

I worry that we are already at a crisis point, without any dismantling of regulation or barriers to access, simply because of courts' weakness in fiscal negotiations. If you're filing in California Superior Court, for example, you may experience a long wait. Now, these court closures are a gambit to a certain extent (or so I believe, since Judge Feinstein is the daughter of a US senator and has politics in the blood), but the points she makes show that change is coming to the legal system one way or the other. nobody engineered these particular problems, but what they have in common with the topic of the FPP are the diffusion of responsibility and subsequent catastrophic inefficiencies.
posted by anigbrowl at 5:41 PM on August 23, 2011

I had a problem with several of the examples given in the Ted talk, and even with saladin's example of the shelter which Mother Teresa's organization decided not to spend or find money on an elevator, which may well have allowed a physically handicapped person to make use of the mythical shelter.

Howard thought that a teacher's failure of imagination in finding a way to include one of his or her students on a hike was example of over legislation. I find it a convincing, if sad example of the continuing need for inclusion to be legislated, although I know of teachers who have organized their class towards the worthy challenge of making sure everyone, even severely disabled students could participate in outdoor adventure.

His description of all boys developing ADD displays a complete lack of understanding and interest in what ADD might be all about. And his phrase "Corrosion of Authority" would make a good name for a metal band, if it wasn't so close to an existing one. For the record, I'm in favour of the corrosion of authority, especially in most of the examples he cites.

I had less trouble with some of his conclusions; I'm sympathetic to the idea of increased trust in laws, and between us generally. But that trust needs to be earned, and our institutions are not doing a great job of that lately.
posted by not_that_epiphanius at 5:47 PM on August 23, 2011

and...I hadn't refreshed this page since 7:48 this am.
posted by not_that_epiphanius at 6:38 PM on August 23, 2011

Okay, this guy had me totally convinced he was just a down-home reasonable logical guy pointing out flaws in the US legal system until I read the metafilter comments and realized the nature of the actual substance of his arguments was corporate shill bullshit.

HOWEVER

Don't his empty sentiments at least strike a little bit of a chord with you? Wouldn't you like to see judges with more power to apply discretion in obvious cases of tiny crime vs. bad law? I'm sure there's a way of easing the burden of huge incomprehensible law on the common citizen without opening the floodgates of corporate deregulation, I just... can't think of any.
posted by tehloki at 7:24 PM on August 23, 2011

Don't his empty sentiments at least strike a little bit of a chord with you? Wouldn't you like to see judges with more power to apply discretion in obvious cases of tiny crime vs. bad law? I'm sure there's a way of easing the burden of huge incomprehensible law on the common citizen without opening the floodgates of corporate deregulation, I just... can't think of any.

Here's the thing. Judges have some of that authority now. And it goes to my larger point. Citizens, by and large have little experience with the law. The journalists aren't helping. Time and time again on the blue, you'll see a post linking to an article where an "injustice" was perpetrated by action of a legal rule. The article will detail incredible suffering. Then people get on here and start ripping on the rule and calling for its repeal based on the injustice in this one case without realizing the important purpose the rule serves and how it protects people.

The fact is the law isn't that hard to understand. Anyone can look it up. Caselaw is even becoming acessible and every supreme court case can be read online.

The fact is judges do have that discretion. But people don't realize that because nobody teaches them and legal journalism is the absolute worst.
posted by Ironmouth at 8:27 AM on August 24, 2011

Wow, quite a bit of additional activity in the last 24 hours!

yarly, I think you're absolutely right: our website sucks. In fact, it sucks so bad (and does such a good job of giving off a gross libertarian vibe) that I nearly didn't apply for this job, thinking it was some sort of Federalist Society front organization or something. I promise, we're in the process of a major site overhaul that will address the wild informational deficiencies that the current site suffers from.

Thus, I understand why your hackles are up. But beyond obnoxiously vague website pronouncements and two or three meaningless anecdotes in his TED talk, can you really point to any concrete evidence that Mr. Howard's agenda is one of radical pro-business deregulation? The 4 (or 5, depending on how you're counting) point plan that Mr. Howard espouses in the TED talk? That's not a call for constitutional amendment. It's a basic set of principles that we feel can be overlaid on discrete areas in which our legal order has in some way or another departed from our broader social goals. Our primary institutional focus thus far has been in education law, where we attribute significant deleterious effects in U.S. educational outcomes to, among other things, the imposition of cookie-cutter standards on schools, the restriction of teacher autonomy, and the increasing reluctance of schools and school districts to allow children to play. We've also developed a proposal for a specialized health-care court system to replace the current civil court approach, which admittedly implicates business concerns but in many respects liberalizes compensation.

If this represents some sort of Trojan Horse, hiding an army of neo-Lochner agency-busters, then you'll have to explain to me how. Maybe my youthful idealism is blinding me to it.

Ironmouth, I'm afraid I've lost your argument entirely, for which I apologize. If I understand you correctly, you seem to agree that there's a problem that's at least somewhat in keeping with the one Mr. Howard describes, but it's one you attribute to overlawyering and lack of education. As for lack of education, as I mentioned above, I think you've got that backwards, at least as it applies to the issues presented here. With respect to overlawyering, I wonder: if you agree that it's a problem, what do you think are the conditions that lead to that problem? And how would you go about addressing them?

I'm sorry for the brevity of this reply, but we're gearing up for a forum we're hosting at the Bi-Partisan Policy Center in D.C. in October (I hope any D.C.-area MeFites will consider attending! Email me for details) and I've got a lot of research to do, but I'll keep checking back in and trying to address responses as they arise. None of you happen to be friends with Justice Breyer by any chance, do you?
posted by saladin at 10:46 AM on August 24, 2011

I wonder: if you agree that it's a problem, what do you think are the conditions that lead to that problem? And how would you go about addressing them?

The need to justify the giant bills that large firms generate. I really do think that. Overlawyering is an overly cautious response to the problem of lawsuits and also its about trying to reassure the client that they can be protected. If you own a business, you are going to do somethings negligently, be it in design, operations, or manufacturing. You need to set aside a certain amount for those things, assume it is going to happen and go from there.

Take the example of the "don't fold kid in stroller" warning. What could possibly be the purpose of that? I don't understand. It is a dumb lawyer thinking about the last lawsuit, not the next one. And its being billed out at $475/hr. It is over lawyering.

Please address the disclosure aspect of my last point. Why did Mr. Howard not start out the talk saying--full disclosure, I work for a large law firm representing corporate clients. He could have even weaved it into the narrative. I think that sort of thing is important. More information is better than less, every time.

I'd also like some responses regarding the selection of examples. They are selected for maximum value. This also creates much distrust. I'd like to see how these proposals would affect the business community. That's where the rubber will hit the road.
posted by Ironmouth at 10:55 AM on August 24, 2011

Please address the disclosure aspect of my last point.

I honestly don't think I can. I don't know what the protocol at TED events is, whether speaker biographies are distributed before the speech or what. He mentions during the talk that he's a hiring partner at a corporate law firm. If you think that's being sneaky, then I'm afraid we'll have to agree to disagree on that point, but I will reiterate, as I have multiple times during this discussion, that neither the speech nor Common Good generally has anything to do with promoting an anti-regulatory pro-business agenda.

I'd also like some responses regarding the selection of examples. They are selected for maximum value.

This one I'm having an even harder time responding to. It was a TED talk. To me it seems glaringly obvious that the types of examples you'd want to select for an audience of largely non-lawyers that came to hear a compelling but vague talk on legal principles are exactly the types of examples that Mr. Howard chose. Moreover, examples lifted from healthcare and education are particularly relevant to the issue-specific work that this organization has been involved in over the last decade, as I mentioned in my previous comment.

Sorry if that's unsatisfying, but as I said I'm having a bit of a hard time understanding exactly what it is you're getting at.
posted by saladin at 11:12 AM on August 24, 2011

Please address the disclosure aspect of my last point. Why did Mr. Howard not start out the talk saying--full disclosure, I work for a large law firm representing corporate clients. He could have even weaved it into the narrative. I think that sort of thing is important. More information is better than less, every time.

You know that applause at the beginning when he walks on the stae? That's the audience greeting him after he's been introduced by the host. TED talks are short and few speakers start with a recitation of their resume, nor do the TED video editors see fit to include the introductory remarks. Lawrence Lessig comes out and talks about copyright without every introducing himself or making a disclosure statement at the top of his talk either. A potted biography is available on the TED website for the curious, and the audience for TED talks is made up of well-informed people who are willing and able to do such research in their sleep. I only clicked on this FPP because I already knew who Philip Howard was and wanted to have some of my philosophical assumptions challenged. He's been beating this drum for >15 years with a fair degree of media coverage, so I had a clear idea of what I was getting into.

Philosophical disagreements are one thing, but harping on the disclosure issue like this is a derail, like bringing Al Gore's flight schedule into a discussion of global warming. you know that I like and admire you, and we agree on a great many topics, but aren't you being a bit disingenuous here? On the one hand, you say that law's not that hard to understand, the complexities are exaggerated, and that much of the legal 'red tape' in modern life is actually make-work, legal prophylaxis churned out by a defense bar with a bad case of mean world syndrome. On the other, you're saying that few people understand the legal system because they lack contact with it, and that Philip Howard's avuncular air is but a front for his evil corporatist agenda.

Yes, he's dumbing it down for an audience of non-lawyers. So are you, and so am I. We all have to grope our way forward when discussing the responsiveness and transactional costs of the legal system because we don't have a generalized theory of legal quality in legislation or litigation. I would love to have a discussion about the comparative merits of empirical, economic, and computational legal studies. I think one of the biggest weaknesses in our system of governance is the fact that legislative drafting is not the exclusive province of the best and the brightest. I'm worried about the fact that the US legal system is in danger of collapsing under its own weight, seeing as how it offers 57 varieties of legal code, while European nations are responding to the challenges of language barriers by developing computable legal ontologies for automated semantic analysis. But when one is talking about law to the general public, or even to the well-educated public like a TED audience, it's hard enough to get past cliches about sharks, number of attorneys per square mile, and Henry IV, and that's why an advocate will often reach for simpler arguments - to engage the audience.

Hell, this is true even for a specialized audience. I went to a CLE event earlier this summer featuring a debate by two 'lions of the bar' on the idea of a civil Gideon, where I was probably the only non-lawyer in the room. I had no expectation of being able to keep up or do more than map the extent of my own naivete. Instead of a double helping of steaming jurisprudence, the venerable debaters sketched out the boundaries of their territory and then trotted out competing parades of horribles to show why a right to civil counsel would be a particularly good or bad idea. It's not that either of them lacked technical ability or was out to pull a fast one on the members of the audience, but that wherever possible, we prefer arguments that appeal to content over those that appeal to form, because we prefer substantive to strategic correctness.

The basic questions here are what government should attempt to maximize by regulation or legislation, and how best to measure it. You (seemingly) want to focus on remedies, Philip Howard (seemingly) wants to focus on deterrence. I don't actually care if this happens to align with some of his clients' interests, any more than I care if your position happens to align with yours. I do care about what sort of approach you favor, not least because these questions arise in many other fields besides tort law.
posted by anigbrowl at 12:48 PM on August 24, 2011

Philosophical disagreements are one thing, but harping on the disclosure issue like this is a derail, like bringing Al Gore's flight schedule into a discussion of global warming. you know that I like and admire you, and we agree on a great many topics, but aren't you being a bit disingenuous here?

I have no idea what was said at the talk before he started talking. All I had was the video. And if TED edited out some statement of who he was (and we don't really know what was said), then that was an editorial mistake because the vast majority of the people who watch these things aren't going to see that part of it. If I'm wrong for holding him responsible, I'm more than willing to admit it. But disingenuous? No. Where am I stating something that isn't true? You can address my arguments (as you did), without attacking the messenger. I think that when we don't get the full facts on who someone is at the beginning, that isn't good.

Having said that, this dude posits a crisis where a problem exists. Most Americans don't walk around frightened of the law all day. But if you listen to the way he talks, he uses an enormous number of adjectives suggesting universality--where none exists. Most Americans encounter actual legal stuff relatively rarely, when someone dies or gets divorced.

Most of his examples involve tort liability, even those involving teachers. And they are examples of overlawyering.

Listen, I don't know what your practice is like. But mine doesn't see an overburdening of regulations. And I have some acquaintance with those of a large city through many talks with my dad, who, as I indicated earlier, does ALJ work in a major US city. I've watched those cases go forward. And ninety-nine percent of them, from my observation, are guys who didn't get a permit for something they should have gotten one for.

In the end, we are going to disagree. I just don't see this "crisis" of American law. Read the transcript. He has the entire US on the edge of virtual collapse. What he's describing is the effects of overlawyering. Even so, is it really a "crisis" when the issue is a tag on a stroller? I think his case is both over plead, and emotionally loaded, which I think is bad.
posted by Ironmouth at 2:59 PM on August 24, 2011

Well, we're not going to agree on the disclosure issue. I could point out that you're not disclosing the fact that you're a labor lawyer of sorts in this thread, which might color your interpretation, presumably because people on MeFi either know this or can easily find out by reading more of your posts. I don't see that as a card you're holding close to your chest, and likewise I don't see that about Philip Howard because it's not hard for anyone interested to find out who he is.

Listen, I don't know what your practice is like.

Non-existent for the next few years, since I don't wish to commit UPL :-) I agree with you that a great many administrative law cases (and tax cases, and environmental cases, and...) involve people who should know better trying to cut corners in order to line pockets or gain some advantage, and that regulation in general is generally written with the intent to promulgate best practice in its domain.

But unlike you, I do think there's a crisis although I don't fully agree with his analysis of the causes or cures. Rather than beat you over the head with examples - which will just be time-consuming and unpersuasive in the context of this thread - I invite you to bookmark this in some fashion and come back to it the next time you're reading a pile-on-Obama thread or a fuck-the-police thread where people are all pissy and uninterested in explanations of why procedure dictates that things have to be done thus and so. The crisis is not in law itself, but in the decline of confidence in our civic institutions and in respect for the legislative and litigation process. Think of the last/next Matt Taibbi whinefest about the administration's failure to hold public executions on Wall Street.

Now, it can be argued that 'twas ever thus, and indeed whenever I'm feeling gloomy one of the best cures is to sit down with a history book and realize that The End Has Always Been Nigh from a contemporary viewpoint, but here we are these many years later all the same. But historically speaking, this is a time of unusually rapid social change - globalism, technology, economics and other factors all play their part. Bloodless technocracy is not much good as assuaging people's existential insecurities, and I say that as a proud bloodless technocrat.
posted by anigbrowl at 4:13 PM on August 24, 2011

The Patent Lawsuit Economy (infographic)
posted by infini at 7:06 PM on August 27, 2011

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