In pursuit of fairness at any cost, we have created a society paralyzed by legal fear: Doctors are paranoid and principals powerless. Little league coaches, scared of liability, stop volunteering. Schools and hospitals start to crumble. The common good fades, replaced by a cacophony of people claiming their "individual rights." By turns funny and infuriating, this startling book dissects the dogmas of fairness that allow self-interested individuals to bully the rest of society. Philip K. Howard explains how, trying to honor individual rights, we removed the authority needed to maintain a free society. Teachers don't even have authority to maintain order in the classroom. With no one in charge, the safe course is to avoid any possible risk. Seesaws and diving boards are removed. Ridiculous warning labels litter the American landscape: "Caution: Contents Are Hot." Striving to protect "individual rights," we ended up losing much of our freedom. When almost any decision that someone disagrees with is a possible lawsuit, no one knows where he stands. A huge monument to the unknown plaintiff looms high above America, casting a dark shadow across our daily choices. Today, in the land of free speech, you'd have to be a fool to say what you really think. This provocative book not only attacks the sacred cows of political correctness, but takes a breathtakingly bold stand on how to reinvigorate our common good. Only by restoring personal authority can schools begin to work again. Only by judges and legislatures taking back the authority to decide who can sue for what can doctors feel comfortable using their best judgment and American be liberated to say and do what they know is right. Lucid, honest, and hard hitting, The Collapse of the Common Good shows how Americans can bring back freedom and common sense to a society disabled by lawyers and legal fear. From the Trade Paperback edition.

Philip K. Howard is a lawyer and the author of The Death of Common Sense. He has advised leaders of both parties on legal and regulatory reform. Howard grew up in small towns in the South and is the son of a Presbyterian minister. He is a managing partner of an international law firm and lives in Manhattan with his wife. They have four children.

The Lost Art of Drawing the Line

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The Collapse of the Common Good

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The Legal Wedge in the Racial Divide

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The Secret to Freedom

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Notes

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Acknowledgments

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The Lost Art of Drawing the Line !

The double slide in Oologah, Oklahoma, donated to the town park by the Kiwanis Club, was a local landmark. For fifty years this slide, looking like two legs of a spider, had provided fun for the children of Oologah. In 1995, however, a child suffered minor injuries while playing unattended on the slide, and the parents made a claim against the town. “I knew it was going then,” said Judy Ashwood, fifty-three, who herself had played on the slide as a child. “It’s hard for me to think that people who live here would actually sue the city if their child fell off the slide.” But the town board decided it had no choice, notwithstanding a citizen petition asking that the slide remain in the park. It auctioned off the slide to a resident of a nearby town, getting $326.50, and the Oologah park slide was carted away.

All across America, playgrounds are being closed or stripped of standard equipment. In 1997, Bristol, Connecticut, removed all of the seesaws and merry-go-rounds from its playgrounds. When told of the decision, the face of thirteen-year-old Jennifer Bartucca fell with disappointment. “Every time I come here, I ask a friend to go on the seesaws. It is one of my favorite things to do at the park,” said Jennifer: “I love merry-go-rounds. My father would push me on them when I was a little kid.” Nicole LaPierre, sixteen, was equally disappointed. “If you play right, you’re not going to get hurt.”

Being safe has come a long way since Ralph Nader pointed out the absence of safety guidelines for cars and other consumer products. Avoiding risk is now practically a religion. But it’s not clear that the results are necessarily what most people want. Some towns, for example, have the resources to replace the playground equipment with new, safer alternatives, including transparent tubes to crawl through and a one-person seesaw that works on a spring. Can you wait? The new equipment is so boring, according to Lauri Macmillan Johnson, a professor of landscape architecture at the University of Arizona, that children make up dangerous games, like crashing into the equipment with their bicycles.

The headlong pursuit of safety is killing off the simple pleasures of life. Why take a risk on an activity that’s not absolutely necessary? The town of Park City, Utah, had a proposal to make bicycles available for free to tourists and others, both to alleviate the traffic and to make the town more attractive. Most people old enough to ride a bicycle are aware of the hazards. But accidents happen, and after concerns were raised about the possibility of a horrible accident, the plan was stopped. Better safe than sorry. Larck Lake, in West Virginia, had been open to fishermen and picnickers since 1993. But the owners got scared because teenagers coming up to a party there often decided to go swimming. “We felt that, sooner or later, there would be an accident,” said Fred Stottlemyer, an official with the company that owns the lake, “so we decided to close the lake to recreational use.” Bob Petryszak, who bought a house nearby because of the lake, was disappointed. “This is a great place to fish. The recreation it provides is a great asset to the area. There should be a way to keep it open.”

Fun is optional, of course. The prophets of safety certainly practice a gloomy earnestness. But some activities that we’ve cut out are pretty important. Psychologists tell us, for example, that children need affection. Even before there were psychologists, most people, and animals as well, showed affection to their young. But in America, hugging or, indeed, even a pat on the back is now considered so dangerous that teachers can’t do it. “Our policy is basically don’t hug children,” said Lynn Maher, speaking for the New Jersey chapter of the National Education Association (NEA). The guidelines of Pennsylvania’s NEA chapter urge teachers to do no more than “briefly touch” a child’s arm or shoulder. Michigan passed a law that forbade teachers to touch students for any reason. We’re well on our way to a society where, as Ann Welch, a special-education teacher in Virginia, put it, “we tell children that karate is okay and hugs aren’t.”

Being safe, maybe extra-safe, is what we say is happening. But nobody really believes that. What’s going on has little to do with risk to other people. It’s mainly about avoiding legal risk for the person conducting the activity. “Ultimately, we came to the conclusion we were exposing ourselves to too much liability” by allowing people to keep using Larck Lake, said Mr. Stottlemyer. Charles Montgomery, who bought the double slide from the town of Oologah and set it up for his children in the backyard, put his finger on the problem. “It’s a shame,” Mr. Montgomery said. “I just see a kind of dying part of most people’s childhood. It’s going away because of society and lawyers.”

People talk about the “litigation explosion” whenever a headline announces a huge verdict on some ordinary accident, like the $2.9 million verdict against McDonald’s (later reduced to $640,000) when an elderly lady spilled the hot coffee while pulling away from the drive-thru window. Exorbitant verdicts are the exception, however, and don’t directly touch the lives of most Americans. But law has changed our culture. Instead of looking where we want to go, Americans are constantly looking over our shoulders.

The effects are sometimes tragic. Christopher Sercye, fifteen, was shot while playing basketball on a playground close to the Ravenswood Hospital in Chicago. With the help of two friends, the boy made it to within thirty feet of the hospital entrance. When Christopher collapsed, almost at the hospital door, his friends ran in to get help, but the emergency-room staff refused to come out. Hospital policy was that they should not leave the hospital because, as the explanation later indicated, of fear of possible legal liability for neglecting patients already in the hospital. But going thirty feet outside the hospital is not much different for staff than going thirty feet inside. As Christopher lay bleeding on the sidewalk, a policeman begged the staff to come out. But the hospital staff refused to budge and instead placed a call to 911. Christopher lay on the sidewalk for twenty-five minutes before a police sergeant arrived and commandeered a wheelchair to bring him in. The boy died shortly afterward.

Life-and-death decisions used to be more important than anything, certainly more important than legal niceties about duties to sick people thirty feet in one direction versus thirty feet in another. But Americans today act as if we’re wearing legal blinders that block any sensible perspective. When a possible legal risk pops up before our narrow range of vision, however remote or ridiculous, we react like rats to an electric shock. Why take the legal risk?

A new medical school graduate, one week away from getting her license to practice, was recently driving in suburban New York when she came upon a motorcycle accident with the rider sprawled on the side of the road, obviously badly injured. After a brief discussion with her mother, she decided not to stop because she might be liable for practicing without a license. At first blink, her logic seems perfectly reasonable. But this only shows how warped we’ve become. How about helping out because you’re a human being who happens to have the skills to save a life?

Some suggest that Americans are just being irrational, pumped up by scare tactics of corporations and greedy co-conspirators wanting to undermine the American legal system. Put yourself in the position of the doctor whose patient has a bad headache. Is it aspirin, or a CAT scan? Pretend you’re in charge of making decisions on the school playground equipment. Are you a little uneasy?

The air in America is so thick with legal risk that you can practically cut it and put it on a scale. A volunteer teacher in East Harlem was working with a group of nine-year-olds when one kept shoving the others, ignoring the teacher’s repeated requests and commands that he stop. Finally, she put her hands on his shoulders to tell him that he would be sent home if he didn’t stop. The response of this youthful aggressor? “You can’t touch me, that’s against the law.”

The accepted wisdom is that America is a diverse country, and the values of Americans have changed. But do contemporary Americans really suffer from differing views of what’s too risky and what’s not? Do most Americans really disagree on whether the bleeding boy should be attended to? Is society really so fractured over, say, the risk of letting the public enjoy a mountain lake? If everyone generally knows what’s right or sensible, why doesn’t he or she just make that decision? Not many years ago, we felt comfortable with these decisions. Today it’s unthinkable.

We accept this perpetual legal anxiety as we would an incurable disease. What do you do? After all, people have their legal rights. The relevant issue is whether you can prove your position. We barely even question the system because, well, that’s how law works.

More powerful than any invading army, than any constitution, is an accepted frame of reference. Today, Americans believe that fairness to individuals is the goal of justice. Of course it is, you’re probably thinking. This is America. But what does it mean to be fair? What’s fair, as most adults know, depends on your point of view. The reason we know American justice is fair, unassailable in its fairness, is that it avoids anyone’s point of view. American justice is neutral. Fairness in modern America comes not from asserting beliefs but from avoiding them.

Judges see their responsibility, as Professor Michael Sandel observed, to make a “morally neutral judgment.” Who, even a judge, has the right to decide what’s fair or not? Justice, we’ve been taught, is a matter merely of determining entitlement. Written law sets forth the standards, and the person will either prove the claim or not.

Excerpted from The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom by Philip K. Howard
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