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News and stories from the campaign to reclaim individual responsibility and liberate Americans from bureaucracy and legal fear.

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Law Should Support Moral Choices

Howard’s Daily by Philip K. Howard

Law is supposed to support a free society. Instead, increasingly, “following the rules” prevents people from doing what’s right. This week a lifelong employee of the Washington, DC parks department, Medric Mills, died of a heart attack in front of a DC fire station when the firemen refused to help. The firemen apparently believed they were "following the rules." They were only allowed to respond to 911 calls—not the reality of a person dying at their doorstep. Or, they had to "get permission" from a supervisor before intervening. An investigation is underway.

A few years ago, hospital staff in Chicago refused to help a young man dying of gunshot wounds in the hospital driveway because of a rule that they were not allowed to leave the hospital building. In 2011, firemen watched a man drown in California because they hadn’t been re-certified in “land-based waters rescues.”

Law should support, not supplant, moral choices. American law has instead become a kind of obsession. The solution, as I argue in The Rule of Nobody (out in April), requires a fundamental rethinking of how law is structured: People need to be accountable for the reasonableness of their actions, not mindless compliance with detailed rules.

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Let’s Build, America

Howard's Daily by Philip K. Howard

No economic fruit is larger, or lower hanging, than rebuilding America’s decrepit infrastructure. Several million jobs could be added. American competitiveness would be enhanced. Public and private investors would be repaid handsomely ($1.59 on each $1). America's environmental footprint would be greener. All that’s needed to get all this is…end legal paralysis.

Other “greener” countries approve large projects in a year, two years at most. In America the time frame can stretch into decades. (Read my recent Wall Street Journal op-ed, “Why It Takes So Long to Build a Bridge in America”.)

Once again President Obama highlighted this gargantuan opportunity, saying in last night’s State of the Union address:  "I will act on my own to slash bureaucracy and streamline the permitting process for key projects, so we can get more construction workers on the job as fast as possible." But this has been his priority for five years. Every effort to cut through the process has been replaced by new models of more process.

There’s a missing link: Some environmental official needs to have the job of deciding when there’s been enough environmental review. Don’t trust him? Give another official or committee the job of second-guessing him. Otherwise the process goes round and round forever. Then it’s litigated for years by whoever doesn’t like the project. We’ll never build anything on a timely basis until we scrap this headless system.

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For Better Schools, Overhaul School Discipline

Howard's Daily by Philip K. Howard

Unfair school discipline is good for no one and corrodes school culture, as today’s Washington Post feature suggests.

Schools should indeed have alternative settings so that disruptive students are not just cast onto the streets. But the core defect is solved not by tweaking the elaborate legal code—such as notoriously rigid "zero tolerance" rules—but by scrapping most legal controls.

The focus on racial disparities in discipline ignores the greater harm of racial disparities in learning—how can anyone learn when there's chaos in a classroom? America needs a complete overhaul of the school discipline system, giving back teachers and principals the authority to act immediately when confronted by disruption and to achieve fairness by using their judgment in context, and safeguarding against unfairness by human checks and balances—say, a student-parent complaint committee. 

Formal legal due process in schools has proved to be a disaster, like pouring legal acid into what is supposed to be a culture of learning and sharing. (See Judging School Discipline by Professor Richard Arum.)

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Announcing “Howard’s Daily”

By Philip K. Howard

I’m pleased to announce the launch of "Howard’s Daily," my daily postings hosted here on Common Good’s blog.

"Howard’s Daily" is my commentary on news events, articles, op-eds, etc. which expose how defective legal structures undermine common sense. I'll offer solutions for change, and highlight instances where the right balance has been struck—so that Americans are liberated to do what’s right.

I'll also highlight good ideas from others, and make the connection between current news and themes in my writings, including the forthcoming The Rule of Nobody (W. W. Norton April 2014). 

You can also find me now on Twitter—follow me at @PhilipKHoward for notices of blog postings and, in the coming weeks, more thoughts and articles I like.

Thank you for reading. I’d like to hear your feedback, or suggestions for future posts—so please leave a comment under a blog entry, tweet me, or e-mail me at phoward@commongood.org.

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Federal Rules at 75

by James R. Maxeiner

The Federal Rules of Civil Procedure—the set of rules defining the process for civil lawsuits, now seventy-five years old—are outdated, inefficient, and expensive. You might not have guessed that, however, as present and former leaders of the rule-making process gathered recently for a symposium at the University of Pennsylvania to commemorate the 75th anniversary. If the symposium is any indication, urgently needed substantial reform of the federal rules is not in the cards.

The symposium’s prevailing narrative was that the Federal Rules have been a great success in adapting to new litigation challenges: lawmaking cases such as Brown v. Board of Education, private enforcement of public laws (so-called “private attorneys general”), mass tort litigation, and massive business-versus-business litigation (e.g., Apple v. Samsung). According to the narrative, the Rules were doing a pretty good job of adjudicating these claims until the late 1970s, when backlash arose against the huge costs of such litigation. Today, according to the narrative, the Supreme Court has reacted by limiting access to the federal courts (e.g., Rule 8 pleading, Rule 11 sanctions, Rule 23 class actions, Rule 26 discovery and Rule 56 summary judgment). The Court, so the narrative goes, has tilted in favor of business. “Plaintiphobia” rules.

Only a few voices spoke contrary to the prevailing narrative and suggested that the Federal Rules may have problems. Professor Harold Koh, formerly Dean of Yale Law School and Legal Advisor to the Department of State, asked provocatively whether the Rules have achieved their stated goal of “The Just, Speedy and Inexpensive Determination of Every Action”.  He answered, “at best partially.” Professor Arthur Miller of NYU, one of the harshest critics of Supreme Court decisions limiting court access, gave them a less than stellar grade: “at best, B minus, and on an inflated grade curve, below the median.” He decried reforms of recent years as mostly “tinkering.”

There was one common theme of dissatisfaction: cases are no longer decided. Trials, and with them juries, have vanished. Only one percent of cases get trials. Judges are not judges of disputes, but “terminators” of case files—a point helpfully illustrated by a slide image of Arnold Schwarzenegger.

The flawed, prevailing narrative nevertheless remained: the Federal Rules must be preserved as they are (largely as they were in the 1970s) for these new forms of litigation, even if that means accepting unjust, expensive and slow resolution of disputes. In truth, new forms of litigation require new rules.

Several presenters came close to saying that the “transsubstantive” model, i.e., the same rules for all cases, is no longer valid. They suggested that the Federal Rules should have different litigation tracks for different sorts of claims. Under this approach,  the process of discovery and judicial supervision might vary among different types of cases. Just maybe, such simpler procedures would bring needed common sense to federal dispute resolution.

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Video: Infrastructure Now forum

The benefits of greater public and private investment in infrastructure are enormous—job creation, enhanced economic competitiveness, and a greener footprint. But first, America has to fix its paralytic legal infrastructure. Common Good and Regional Plan Association hosted a forum in Washington, D.C. on November 21 to explore obstacles to effective infrastructure investment and solutions to the regulatory and beaurocratic mess. Below, see video of all the presentations from the Infrastructure Now forum. A full schedule of the event can be viewed here, and you can read Common Good's press release on the forum here.

Senator Angus King (I-ME) introduced the forum, observing that because of our convoluted approval process, many of our most crucial infrastructure projects could not be built today:

 

Diana Mendes of the engineering consulting firm AECOM continued with comments on the history of environmental review, the National Environmental Policy Act, and what we can do today to achieve NEPA's goals without crippling our ability to undertake infrastructure projects (Mendes also used a slide presentation which you can download here):

 

Nick Malyshev of the OECD compared international approval processes that hold lessons for the U.S. approach (Malyshev's slide presentation can be downloaded here):

 

A panel of experts on environmental review shared a variety of perspectives on the challenges and opportunities for reform of the environmental review process:

 

Finally, a second panel investigated the issue of jurisdictional overlap in infrastructure permitting:

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Senator Angus King on fixing infrastructure approval

Senator King's opening remarks from the Common Good/RPA Infrastructure Now forum:

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Why it takes so long to build a bridge in America

The Wall Street Journal on Saturday published an essay by Common Good Chair Philip K. Howard on the frustratingly inefficient process for approving infrastructure projects. This inefficiency takes away jobs and commerce:

Building new infrastructure would enhance U.S. global competitiveness, improve our environmental footprint and, according to McKinsey studies, generate almost two million jobs. But it is impossible to modernize America's physical infrastructure until we modernize our legal infrastructure. Regulatory review is supposed to serve a free society, not paralyze it.

The problem? A hopelessly bureaucratized environmental review process delays essential projects for years, in some cases a decade. Howard writes:

The environmental review statement for dredging the Savannah River took 14 years to complete. Even projects with little or no environmental impact can take years. Raising the roadway of the Bayonne Bridge at the mouth of the Port of Newark, for example, requires no new foundations or right of way, and would not require approvals at all except that it spans navigable water. Raising the roadway would allow a new generation of efficient large ships into the port. But the project is now approaching its fifth year of legal process, bogged down in environmental litigation.

Building and maintaining a modern infrastructure--and the jobs that come with it--requires serious reform of the environmental review process. Howard suggests that we look to other countries' experience:

Canada requires full environmental review, with state and local input, but it has recently put a maximum of two years on major projects. Germany allocates decision-making authority to a particular state or federal agency: Getting approval for a large electrical platform in the North Sea, built this year, took 20 months; approval for the City Tunnel in Leipzig, scheduled to open next year, took 18 months. Neither country waits for years for a final decision to emerge out of endless red tape.

For more ideas about improving the infrastructure approval process, take a look at our issue brief. And you can read the rest of Howard's article here.

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Infrastructure Now forum with Regional Plan Association

The benefits of greater public and private investment in infrastructure are enormous—job creation, enhanced economic competitiveness, and a greener footprint. But first, America has to fix its paralytic legal infrastructure. Common Good and Regional Plan Association hosted a forum in Washington, D.C. on November 21 to explore obstacles to effective infrastructure investment and solutions to the regulatory and beaurocratic mess.

The forum featured participants from government, policy groups, and the private sector, including:

  • Sen. Angus King (I-ME)
  • Steve W. Black, Bingham Consulting
  • Matthew Carstens, ITC Holdings Corp.
  • Jenny D’Anna, ITC Holdings Corp.
  • Tyler Duvall, McKinsey & Company
  • E. Donald Elliott, Yale Law School
  • George Frampton, Jr., Covington & Burling
  • Travers Garvin, Kohlberg Kravis Roberts & Co.
  • Philip K. Howard, Common Good
  • Nick A. Malyshev, OECD
  • Diana Mendes, AECOM
  • Lynn Scarlett, The Nature Conservancy
  • Robert D. Yaro, Regional Plan Association

You can view the full webcast of the forum here, and we'll be posting edited video clips in the coming days. In addition, we've issued a press release with results of a national survey on environmental reviews. Below, some photos from the event:

Philip K. Howard
Opening remarks from Philip K. Howard

Sen. Angus King
Comments from Sen. Angus King (I-ME)

Far Side comic
Diana Mendes of AECOM: "This is how we do things with NEPA":

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More support builds for health courts

We're thrilled to see more and more enthusiasm behind the idea of specialized health courts, where patients and doctors can get more reliable medical justice without the fear, uncertainty, and frequent mistakes of the current malpractice system. This report from the Center for Health Affairs notes that, "By serving as a centralized, standardized repository for medical liability claims information, health courts would allow the root causes of medical errors to be studied." The report also observes the widespread bipartisan support for health courts, which have been endorsed by Barack Obama, Mitt Romney, and a plethora of bipartisan deficit reduction committees.

Common Good Chair Philip K. Howard recently joined the medical news organization Medscape for an interview on the benefits of health courts. Howard notes that the current system "is rife with error in both directions; sometimes it favors the doctors who did something wrong and often it favors an injured patient even when the doctor did nothing wrong, particularly in tragic cases." The prevalence of legal fear means that  "physicians and nurses are...trained not to speak up when they see something in their peripheral vision that they are not sure is right, because they might be taking legal responsibility."

Health courts would restore trust and reliability to our medical justice system. Read Common Good's proposal here.
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