Philip Howard wants to “liberate Americans from too much law,” even though the law has served him well. The UVA Law grad is a partner at Covington & Burling. He made a strident argument for legal reform in his book last year, Life Without Lawyers: Liberating Americans From Too Much Law.
Slate’s Dahlia Lithwick reviewed the book. Though she shares some of his concerns, she concludes that “the cure for ‘too much law’ should not be too little.” But some people think Howard’s ideas are worth spreading. Among them are the organizers of TED. The TED conference invites presentations from leading thinkers in Technology, Entertainment and Design. (Sometimes leading thinkers are god-awful, though.)
Howard spoke at TED about “four ways to fix a broken legal system.” And he did it in just 18 minutes. He said:
Law is supposed to support our freedom, not undermine it. Somehow over the last few decades the land of the free has become a legal minefield. Hardly any social interaction is immune from legal implications. A pediatrician told me matter-of-factly, “I don’t deal with patients the same way anymore. You wouldn’t want to say something off-the-cuff that might be used against you.” My own law firm has questions we’re not allowed to ask interviewees, including such suspect questions as “Where do you come from?” In the land of the First Amendment, spontaneity can land you in a lawsuit.
Well, Covington-wannabes, you don’t have to worry about fielding that question at OCI.
Video from the conference and the bulletpoints, after the jump.
Howard makes the familiar argument against frivolous lawsuits, but also argues that law stretches into too much of what we do:
We’ve been told that America has the fairest and best legal system in the world. We let anyone argue anything. The system is completely neutral–no one can argue the fix was in if the jury decides every case, or if there’s a rule written in advance to dictate any decision by a government official, or if some official unavoidably has to make a decision, then lets have lots of legal hearings. Law is important in the right context of course. But America no longer draws these lines. No decision is too small for law. Lawyers for disputes in schools, lawyers for building permits, thousands of pages of new rules written every year in Washington–at this point over 100 million words of binding federal law and regulations.
Here are the four “propositions” that Howard makes. In sum, they seem more like “Two things wrong with the legal system and two ways to fix it,” but that wouldn’t make as striking a TED presentation title:
- Judge law mainly by its effect on society, not individual disputes.
- Distrust in law corrodes freedom and causes failure.
- Law must set boundaries protecting an open field of freedom, not intercede in all social interaction
- To rebuild boundaries of freedom, two changes are essential: A, Simplify the law; and B, Most importantly, restore authority to judges and officials.
Howard ends with this:
Most of us have been taught that authority is the enemy of freedom. In fact, authority is essential to freedom. If the teacher doesn’t have authority to maintain order, then everyone’s learning suffers. If the judge doesn’t have authority to toss out unreasonable or excessive claims, then pretty soon we’re all going through the day looking over our shoulders, not where we want to go. If the environmental agency can’t decide that the power line is better for the environment, then there’s no way to get the power from wind farms.
A free society requires red lights and green lights. Otherwise it soon descends into gridlock. Look around. That’s what’s happened in America. That’s why we must restore the authority to make common choices. That’s the only way to restore our freedom in daily choices, and the only way to release the human energy and passion needed to meet the challenges of our time.
What do you think, ATL readers? Do you green light this?
Philip K. Howard: Four ways to fix a broken legal system [TED]
Too much law suffocating America [CNN]
Law Blog Q&A With Author Philip Howard, Part I [WSJ Law Blog]
Law Blog Q&A With Author Philip Howard, Part II [WSJ Law Blog]
Law! Law! Law! [Slate]