The Blog

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

Blog — Op-Ed

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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Students! Barricade the Doors & Hide Under Your Desks! Suspect Has a…oh…never mind

By Lenore Skenazy

Lifted from a friend of a friend's Facebook page:

Just spent 20 minutes under a desk with my colleague...door locked and blinds closed. Turns out it was a false alarm, but scary nonetheless.

In fact, it turned out to be a guy with a cell phone or some other tool. Here's the full story. It happened at Cal State University Long Beach, and according to the  school:

The alert came only hours after University Police held an active shooter and mass casualty drill...designed to test the Student Health Center’s ability to perform triage in the field, according to a Cal State Long Beach press release.

Do you think awareness was heightened just a little too much? That's my guess. I know the idea is, "If you see something, say something." But if you start SEEING THINGS -- as in imagining the worst every time you see a guy with a bulge -- good luck.

lou

"Is that a gun in your pocket or are you just ready to kill me?"

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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Miriam Kurtzig Freedman: Rethink special education

In the Wall Street Journal, school attorney Miriam Kurtzig Freedman takes on the thorny issue of special education--the $100-billion-dollar program that needs a closer look:

Very little work has been done to establish how inclusion [of special education students in regular classrooms] affects regular students—whether they are average, English-language learners, advanced, poor or homeless. Studies seem to support the social benefits of mainstreaming for children with disabilities and possibly for regular-education students, but what about the effect on their academic progress?

Teachers may tell you (privately) that inclusion often leads them to slow down and simplify classroom teaching. Yet the system is entrenched and politically correct. Many parents remain silent. Some quietly remove their kids from public schools.

Can this be anything but very bad for America? Our schools thrive only with a diverse student population and engaged parents—not with the departure of those who choose to leave.

New thinking on special ed is desperately needed. As Philip K. Howard wrote in The Atlantic:

Today, special ed consumes 20 percent of the total K-12 budget in America. Programs for gifted children get less than half of one percent, and pre-K education gets almost nothing. Is this a sensible allocation of education dollars?

Read Freedman's full piece here, and read more about Common Good's education proposals here.

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The diaper of doom

By Lenore Skenazy

So a new diaper is being developed with a “QR” code on the front. When a baby pees, some kind of litmus strip inside the diaper analyzes the, uh, output and the QR code reflects what it has found. You simply snap a picture of the code, and use the app to...

Obsess about incredibly small risk.

“Seriously, what parent wouldn't want to use smart diapers to take some of the guesswork out of keeping their baby's health in check?” gushed one early review. The answer is: Anyone who understands that guesswork is fine, when it comes to parenting.

If your baby isn’t sick or special needs, why treat every diaper change like a trip to the endocrinologist? This is a new way of looking at our kids: As if it is only some kind of miracle that keeps our children alive from one second to the next. That is the kind of distraught outlook that makes us demand ever more laws, regulations and surveillance to insure against even the tiniest of odds that something COULD go wrong.

The assumption that something terrible is happening that we just can’t see is the same impetus behind keeping kids indoors (there may be a predator in hiding!), and not trusting any foods except locally grown spelt (there may be some toxic chemical we just can’t detect!) and pivoting video baby monitors (there could be someone sneaking into the baby’s room!) and all the TSA stuff (that lady COULD be smuggling a bomb in her unopened can of Coke!). Yes, there is the possibility of any or all those happening BUT the odds are so great, when do we decide to live with a bit of uncertainty?

When we grow up and understand that there is no way to eliminate ALL RISK. Aiming for zero risk means seeing only what COULD go wrong in any endeavor. The result is a million reasons not to do anything at all – not to build, explore, innovate. Not to do anything except sit there at home, taking pictures of the diaper and pacing the floor until the app gives the all clear.

Until the next change.

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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