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

Blog — Op-Ed

Fair Regulation Requires Human Judgment

Howard’s Daily by Philip K. Howard

Perhaps it’s fitting that Madison County, Illinois—where trial lawyers roam the courts like gunslingers—is now also a symbol of bureaucratic excess. This week Madison County authorities shut down the fledgling cupcake business of 11-year-old Chloe Stirling (“Hello, Cupcake!”), because health department rules require her either to purchase a commercial bakery (hmm, that’s practical) or to have a dedicated kitchen (ditto). Chloe’s cupcake business now is tossed onto the scrapheap of neighborhood activities, such as children’s lemonade stands, soup kitchens, and school fundraisers that, inevitably, conflict with cast-iron bureaucratic rules that loom over our (supposedly) free society.

The flaw here is the notion that regulatory oversight requires one-size-fits-all. The main public purpose of health regs is to avoid poisoning people, an undeniably worthwhile goal. But regulators should focus on the goal, not rule micromanagement. Officials must have flexibility to make exceptions for life’s little activities—at least until a real problem emerges. Yes, giving officials flexibility can sometimes lead to problems, as with certain police practices. But if police enforced every law literally, most of us would be in jail for jaywalking. It is impossible to regulate society fairly and sensibly without human judgment. Chloe Stirling is only the latest example of America’s flawed governing philosophy. See generally

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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

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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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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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To reduce lawsuit abuse, use smart system design, not sanctions

By James R. Maxeiner

maxeinerOn Monday, October 21, the Law and Economics Center of George Mason University held a Congressional Civil Justice Caucus on the pending Lawsuit Abuse Reduction Act of 2013 that aims to “put teeth back into Rule 11” sanctions to reduce frivolous litigation. It would reverse the 1993 amendments to Rule 11 that let litigants escape sanctions for frivolous claims by withdrawing the claims within twenty-one days after a motion for sanctions is made.

The bill has been met with some skepticism. General Electric litigation head Bradford Berenson, for one, is not an enthusiastic supporter: "There are other tools that are more powerful, more helpful, and get more at the real problems with our system."

Coincidentally, only days earlier, I had addressed a group of twenty judges from the Nanjing China People’s Intermediate Court at the University of Baltimore for a two-week training session. The judges were particularly interested in how the United States approaches abusive litigation–evidently it is a serious problem in China. I told the judges that other countries do not need to sanction abusive litigation because they remove incentives to bring abusive claims. In effect, I agreed with Mr. Berenson that smart design and not sanctions are the answer to reducing abusive litigation.

How do other countries ensure good faith litigation? Germany offers an instructive example. Here are some of the ways it mostly eliminates incentives for meritless litigation:

  1. Filing fees are proportionate to amounts claimed. The U.S. Federal Courts are flat-rate. $350 is the admission ticket no matter how much you claim. Not so elsewhere: claim more, pay more.
  2. Fees are shifted to the loser. Fees shifted are limited to proportionate amounts. Losing is determined by whether you get all that you ask for. Demand $1,000,000 and get $10,000, you are the 99% loser and pay 99% of the attorneys’ fees and court costs.
  3. Judges review plaintiffs’ complaints for sufficiency (‘plausibility’ if you will), before they serve them. Plaintiffs plead facts and the evidence they plan to rely on; judges know the law. The judges’ maxim is “tell me the facts, I will tell you your rights.”
  4. Judges at the outset of the case meet with the parties to focus the parties on which law applies and which facts are in dispute.
  5. Judges supervise evidence taking and decide in every instance whether evidence proposed to be taken concerns those material and disputed facts. There’s no need to take evidence on anything else.
  6. Parties are under a duty of cooperation. Since they can only take evidence with court permission, they cannot force the other side to provide unlimited discovery.
  7. Although judges focus the parties early on material facts in dispute, in the case, they do not foreclose looking at other facts and law if the case develops in an unexpected way. They do not decide the case finally until the day of the last oral hearing.
  8. Judges, as they are in bench trials in America, are required to explain their decisions. That means an implausible verdict is not likely. If the court in its decision somehow credits an implausible claim, the appellate court, which reviews law and facts, has an easy time correcting it.

All of this you can find in greater detail in my book Failures of American Civil Procedure in International Perspective with a foreword by Philip K. Howard. It works.

James R. Maxeiner is the Associate Director of the Center for International and Comparative Law at Baltimore University.

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Fixing Medical Justice

"Health care in America will never be fixed unless we as a nation address doctors' understandable distrust of medical justice." That's what Philip Howard said in a recent interview with the Hartford Business Journal, which you can read in full here. Howard spoke on the delays and inefficiencies imposed by our unreliable, adversarial medical justice system. For example: "On average, [medical malpractice] cases that go all the way to trial take somewhere between 39 and 44 months. By comparison...the median time from filing to trial for all types of civil lawsuits is less than two years."

Howard proposed that health courts, outlined by Common Good here, would "speed this process up."

By creating clear standards of care, health courts will allow judges to dispose of weak and invalid claims quickly after filing, while also disincentivizing doctors and insurers from defending cases in which they are unambiguously at fault. Furthermore, by ensuring that judges and not juries are deciding cases, and by ensuring that judges rely on the testimony of neutral court-appointed experts rather than litigants' hired guns, health courts will eliminate the need to even hire a lawyer for most plaintiffs, shaving considerable time and expense off of the current process.

Check out the full interview for more insights on medical justice reform.

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Swimming with the lawyers

by Lenore Skenazy

Here's a sign of the times, sent from a vacationing reader who admits the rule does not seem to be enforced much.

Swimming rule

Of course it makers sense not to swim alone. But requiring two adults over 21 is treating a dip in the pool like shark-diving  in a hotdog suit. This is what happens when you start worrying about liability and wondering what precaution a jury would consider ENOUGH precaution.

Or when your lawyers start worrying for you.

Lenore Skenazy is a public speaker and the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

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