The Blog

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

Blog — Justice

George Will Warns Against Warnings

"Whatever happened to the rule, ‘Do not speak unless you can improve the silence’?”

That’s the question the Washington Post’s George Will asks in a recent column about the “merciless river of words” that characterizes today’s airport experience. Warnings and disclaimers are everywhere—like the announcements that moving walkways will indeed end (“Pretty much everything does come to an end, doesn’t it?”). Do they really make us safer? Making arguments akin to Start Over’s on the effects of legal fear and the need to rein in lawsuits, Will writes:

Perhaps some silly warnings are ‘necessary’ to fend off the Fourth Branch of government, a.k.a. trial lawyers. But this merely underscores the fact that all this noise is symptomatic of modern derangements. Solemn warnings about nonexistent risks, and information intended to spare us the slightest responsibility for passing through life with a modicum of attention and intelligence — these express, among other things, an entitlement mentality that the nanny state foments: If something bad or even inconvenient or merely annoying happens to us, even if it results from our foolishness, daydreaming or brooding about the meaning of life, we are entitled to sue someone for restitution.

In January 2009, Will wrote about the work of Philip K. Howard and Common Good, stating: “Law is essential to, but can stifle, freedom…[Today,] what should be routine daily choices and interactions are fraught with legal risk.” Will went on to call Howard’s Life Without Lawyers “2009’s most needed book on public affairs.”

Read the whole column and add a comment here.

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Providence Journal Editorial: Join Start Over

In a Friday editorial, the Providence Journal endorses the Start Over campaign and encourages its readers to join the effort. A snippet:

The initiative promotes such reforms as (our favorite!) ‘sunset sessions’ of legislatures to get rid of outdated laws; making laws briefer and easier to read; and creating health courts to bring more medical science and rationality to medical disputes now dominated by trial lawyers.

Voters and candidates in this election cycle should pay close attention to Start Over for proposals on how to create a more efficient, more rational, more courteous and less costly society. Again, see www.startover.org and join the campaign. (The site has some hilarious examples of legal overreach. And you can send your own.)

This is not a right vs. left issue. It’s about common sense.

Read the editorial in full and leave your feedback in the comments section below.

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Model Recreation Liability Statute

As related by the New York Times this week, there’s a growing consensus among researchers that sheltering children from normal playground risks can pose its own, greater risks. But before park and playground providers—municipalities and schools in particular—can provide opportunities for more invigorating play, they need to be confident that doing so won’t expose them to legal liability. (The Times also notes that a significant reason for today’s “safety-first playgrounds” is legal fear.)

To this end, Common Good has drafted a model recreation liability statute that would provide play providers greater protection from lawsuits from normal recreation accidents. Click here to access the draft.

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Today’s Read II: The NYT Asks ‘Can a Playground Be Too Safe?’

John Tierney of the New York Times addresses the increasing skepticism towards “safety-first playgrounds” and relates researchers’ belief that “these playgrounds may stunt emotional development, leaving children with anxieties and fears that are ultimately worse than a broken bone.” He writes:

The old tall jungle gyms and slides disappeared from most American playgrounds across the country in recent decades because of parental concerns, federal guidelines, new safety standards set by manufacturers and—the most frequently cited factor—fear of lawsuits.

Shorter equipment with enclosed platforms was introduced, and the old pavement was replaced with rubber, wood chips or other materials designed for softer landings. These innovations undoubtedly prevented some injuries, but some experts question their overall value.

Common Good has long warned that the desire to remove all risk from children’s lives poses greater risks in itself—both mental and physical—and we continue to document how legal fear has increasingly limited children’s opportunities for stimulating, healthful play. (In 2006 we hosted, along with the AEI-Brookings Joint Center, an event titled “The Value of Play: A Forum on Risk, Recreation, and Children’s Health.”)

Start Over believes that courts and legislatures should—as a matter of law—set boundaries of acceptable risk so that schools, municipalities, and other entities can provide energizing play opportunities to children without fear of being sued.

Read Tierney’s piece in full and leave your feedback in the comments section below.

Common Good has drafted a model recreation liability statute that would provide play providers greater protection from lawsuits from normal recreation accidents. Click here to access the draft.

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Today’s Read: Richard Louv on the Legal Barriers to Experiencing Nature

Writing on his personal blog, journalist and author Richard Louv argues that “legal barriers to experiencing nature, at any age, are likely to continue, unless a deeper philosophical and legal challenge is made.” To this end he calls for a “National Conference on Children, Nature and the Law,” writing:

As a powerful deterrent to natural play, fear of liability ranks right behind the bogeyman. Parents are afraid to let their kids build a tree house in the backyard. School administrators are afraid to create natural play places (even though they tend to produce fewer injuries than playgrounds with typical play structures). In July 2005, The Fort Lauderdale (Fla.) Sun-Sentinel reported that Broward County schools had erected ‘no running’ signs at 137 elementary schools, as one of several steps to cut down on injuries and lawsuits. Playground merry-go-rounds and swings were already history.

Start Over applauds Louv’s efforts to address what he has coined “nature-deficit disorder”—brought about in part by legal fear—and agrees with the need to address law’s role in impeding children’s play and all Americans’ enjoyment of nature. Read Louv’s blog entry in full and leave your reactions in the comments section below. 

As a columnist for the San Diego Union-Tribune, Louv wrote a series of op-eds in 2005 on America’s dangerous aversion to risk, citing the work of Philip K. Howard and Common Good. You can read those pieces here: Part 1, Part 2, Part 3, and Part 4

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Philip K. Howard Speaks on Law and Civility

Watch Philip K. Howard’s talk at the Carnegie Council from last week on how modern law has undermined ethics and civility.

We’d like to hear your feedback — please leave your thoughts in the comments section below.

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Let’s Talk: The Role of ‘Defensive Medicine’ in Rising Healthcare Costs

Wayne Oliver of the Center for Health Transformation writes on the Atlanta Journal-Constitution’s HealthFlock blog that “there is a hidden cost of healthcare that no one wants to talk about”—defensive medicine. Defensive medicine—the practice where doctors order unnecessary tests and procedures to protect themselves from potential lawsuits—contributes anywhere from $45B to over $200B of waste to the cost of healthcare every year. 

Start Over asserts that controlling healthcare costs is impossible without first addressing the distrust that fuels defensive medicine—and, as also suggested by Oliver, that in order to create a foundation of trust we need to establish health courts.    
 
We want to hear from you—How would you address defensive medicine, or wasteful healthcare spending generally? Do health courts hold the key to creating reliable medical justice? Have you experienced defensive medicine personally?—please leave your thoughts and questions in the comments section below.
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Legal Idiocy #10: Six Employees. One Inmate. No Sense.

The juvenile detention center in Manitowoc County, WI, costs over $300,000 a year to operate. It holds one offender. When the county executive proposed closing the facility and moving the lone juvenile to a neighboring county, they were rebuffed. Why? David Frum explains: "Answer: a union work rule. The relevant contract forbids the county to do any subcontracting if unionized workers have been laid off. So, unless the county can find other jobs for the six juvenile detention center workers, the county cannot contractually pay another county to store its lone inmate."

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Maryland School the Latest To Show ‘Zero Tolerance’ for Discretion

Two 17-year-old lacrosse players were recently suspended from their Maryland high school for running afoul of the school’s “zero tolerance” policy on weapons. One of the students, who had never before been in trouble at the school, was suspended for ten days after a pen knife was found in his lacrosse bag. (He was also handcuffed and arrested by the police for “possession of a deadly weapon.”) The other student was suspended for one day after he was found with a lighter—which the school deems “an explosive device”—during the same search. School officials were not moved by the students’ explanation—which was supported by coaches, players, and parents—that the items were used to fix their lacrosse sticks—and instead insisted they were just following Maryland law.

Designed to give school officials more authority, as Common Good Chair Philip K. Howard explains in Life Without Lawyers, zero tolerance policies have come to symbolize some educators’ inability and others’ unwillingness to take responsibility to do what’s right. On this, the Baltimore Sun asks: “If we consider it a central mission of our schools to teach children not just to memorize facts but also how to think and reason, what kind of message does it send if those in charge employ none of those skills?”

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