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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

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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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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Philip Howard speaks on encouraging good medicine

Last Thursday, Common Good Chair Philip K. Howard presented before the Florida State University College of Medicine’s Grand Rounds series. In his remarks—titled "Remaking the Social Contract with Healthcare Providers"—Howard examines the conditions under which doctors, nurses, and hospital administrators deliver care today, questioning whether they have the freedom to act on their best judgment and values to do what’s right.

Philip Howard"I think we’ve created a [healthcare] structure that demeans healthcare professionals at the same time that it encourages them to act selfishly," he argues. "I think we’ve smothered the conditions for human accomplishment under endless bureaucracy." Howard goes on to address four particular institutional flaws in healthcare that need to be corrected.

You can watch Howard’s full remarks here.

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Should bullies get three months in jail?

by Lenore Skenazy

It's hard to think of anyone in favor of bullying, but this seems truly overboard: A proposal in Australia to prosecute kids as young as age 10 for bullying. According to The Daily Telegraph:

CHILDREN as young as 10 could be criminally charged as part of a radical proposal to overhaul Australia’s approach to bullying.

A symposium organised by the National Centre Against Bullying and the Australian Federal Police will next week consider how laws should be strengthened to fight bullying and cyberbullying.

It’s hoped that as a result of its recommendations, Australia will become the first country in the world to have unified national laws to address bullying.
NCAB chairman Alastair Nicholson, the former Chief Justice of the Family Court of Australia, said the law does not define bullying, cyberbullying or clarify the legal duty of schools, teachers, parents and carers.

He said a summary offence for bullying with a maximum penalty of three months jail would help educate people and act as a deterrent to offenders.
“I think there is a real need to examine the way the law operates, if only so that people know where they stand,” he said.
But bullying shouldn't be handled by the police and courts unless it involves things the police usually deal with, like actual crimes, not just rotten behavior.

The "school to prison pipeline" is already getting clogged with merely disobedient kids now trailing rap sheets, thanks to more and more police, not principals, mediating school scuffles. And besides, says Susan Porter, author of Bully Nation: Why America's Approach to Childhood Aggression is Bad for Everyone: "Laws, by definition, are intended to deal with situations in a uniform way. If there’s one thing we know for sure about children is that they are not uniform, nor do they respond in uniform ways to consequences."

Kids develop in different ways at different times, and even swing between being bullied and being the bullies. Defining them as one or the other isn't the job of the cops unless the kids are breaking a law. (And a real law, at that. Not a "Zero Tolerance" edict issued by some bureaucrat who sees bullying in every schoolyard scuffle.)

As for three months in jail? THREE MONTHS? "These laws are at best misguided," says Porter. "At worst they will hurt the very people we are trying to protect and educate: children."

Draconian laws don't make kids safer. They just make lawmakers look like bullies, eager to pounce on defenseless kids.

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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University buys bulletproof whiteboards for its professors

by Lenore Skenazy

Reading and writing and richocheting? University of Maryland at Eastern Shore just spent $59,800 on bulletproof whiteboards for its classrooms. This begs a whole lot of questions:

whiteboard

  1. Who gets to stand behind the shield? The professor? Or the kid who writes the most convincing, "Why I Deserve the Shield More than My Professor" essay?
  2. What do you want to bet the kid who writes the most convincing essay somehow ends up failing the class?
  3. Exactly how does a bulletproof whiteboard help even the person holding it? Weren't shields invented back when all you had to do was not get skewered by a lance? So, you could hold it in front of you but still peek around or over it? I mean, if you can't peek, how can you see where the enemy is?
  4. Alternatively: If you DO peek, and now your enemy has a gun and not a lance, doesn't that mean your head is as unprotected as a pumpkin on a spike?
  5. Who's the president of this university -- Ben Hur?
  6. Why are we even talking about a single shield making sense in a classroom full of students?
  7. More to the point, why are we even talking about this, period? As tragic and senseless as the Sandy Hook shooting was, the bigger picture is that America is really safe. Not perfectly safe -- nothing is. But the homicide rate is back at the level it was in (wait for it!) 1906.
  8. No one bought white board shields in 1906.
  9. Then again, no one watched CNN.
  10. Then again, no one does now either.
  11. Lists usually end at 10, so consider this more of a footnote: Shields for shooters are as weird and worst-case-scenario as buying helmets for all the students -- excuse me, for all the professors -- just in case of a falling meteor.
  12. Final final note: Which did happen last year, too. But somehow we manage to keep that danger in perspective.

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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