Life Without Lawyers – Part 2

This post continues where I left off yesterday:

Lawsuits are necessary as a mechanism to sort out rights and wrongs in particular disputes. But the systems has been so abused that Americans no longer trust justice and this leads to a loss of a sense of freedom. To restore faith, justice needs to both protect against unreasonable conduct and protect against unreasonable claims. Modern justice is too often used for extortion which is the source of legal fear which undermines our freedom. Judges must draw on their own values, acting as surrogates for society to determining what constitutes reasonable claims. Howard believes judges must actively manage the conduct of each case. This includes drawing cases to quick conclusions. He also thinks that we should establish special courts for areas requiring special expertise, specifically to address medical malpractice.

Values don’t materialize without the freedom to assert them.

Restoring personal responsibility is the key to fixing America’s schools. Strong principals are a key to successful schools as they act as a buffer to bureaucracy and allow teachers to focus on teaching. Too much bureaucracy stops teachers and principals from doing what they think are best for their students.

Any healthy organization needs accountability. We tend to think of accountability from the standpoint of the affected person, but accountability is profoundly a matter of the group. Ineffective employees not only are deficient in their contribution but also have a corrosive effect on everyone else. There is no accountability in America’s government service or public schools. With lack of accountability comes the growth of bureaucracy. When people can’t be judged for whether they did the job, rules will be made to instruct them how to do the job. The legal reforms of the 20th century protecting workers and consumers were meant to protect against conduct that affected an entire category of people, not at protecting the job of a particular person. America needs to remove the legal walls and weapons that individuals use to insulate themselves and return to broader principles of group protection.

Fixes for Teachers and Public Employees:

  • There should be retraining and reassignment opportunities for terminated employees so that they have an option of fitting in elsewhere.
  • Install safety nets so that fringe benefits are transferable and employees don’t feel like they are restrained by ‘golden handcuffs’
  • There should be neutral hiring and program turnover so that civil servants are hired based on merit rather than connections.

Fixes for the Private Workplace:

  • Enact Laws that discourage individual claims instead of encouraging people to sue.
  • Job references, positive or negative, should not be the basis of a legal claim without concrete allegations.
  • Informal review mechanisms, such as mediation, should replace discrimination and other employment litigation.

There is a disconnect between Washington and the rest of the country due to too much law. Law has replaced responsibility. Government today is set up to minimize official discretion. Government should have clear goals and to designate officials to take responsibility to accomplish those goals. Officials need the authority to accomplish their goals and there should be laws with clear boundaries that still maintain flexibility. America does not need a new Constitution but spring cleaning and a practical approach to making public choices without being hindered by endless laws. Washington needs room so that officials can focus on laws that benefit the country rather than mindless compliance.

At the end of the book Howard lists some of his solutions to the problems we face:

  • Restore the authority of judges to draw legal boundaries so that people have confidence that justice will be reliable.
  • Replace the vocabulary of rights with the goal of balance.
  • Liberate teachers and principals from legal rules and processes. Bureaucracy can’t teach.
  • Restore responsibility to government by giving authority to identifiable officials.
  • Provide checks and balances for official decisions up the hierarchy of responsibility, not generally by legal proceedings by dissatisfied individuals. The goal is the common good, not the lowest common denominator.
  • Revive personal accountability. Your freedom hinges on the freedom of others to make judgements about you.
  • Decentralize public services to the extent feasible. Citizenship requires active involvement in the community.
  • Organize a national civic leadership to propose a radical overhaul of government. Washington is paralyzed and must be re-codified. This requires outside leadership.

I enjoyed most of the book and generally agreed that the system in the US is broken and out of control. This also applies to the UK to some extent as seen by the obsession with ‘health and safety’. Howard is very clear in what he see is wrong and what he proposes to fix the problems. It is amazing how many books that deal with something that is perceived to be broken don’t actually offer any solutions. My biggest criticism of the book is that Howard spends the whole book talking about how the system does not work and I would like to have seen him highlight some aspects that work.

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