02.17.092:55 AM ET

An Argument Against Legal Extremism

Howard has reasonable ideas for reform. But it isn’t realistic to portray the present system as a fall from grace, because there never was a legal Eden in this country.

Philip Howard thinks Americans must be “liberated” from “too much law.” He says that we have reached the point where almost anyone can be sued over almost anything and that in consequence people and institutions have become almost cravenly averse to risk. Teachers won’t discipline disruptive students; doctors waste time with defensive medicine; and cities close parks and turn playgrounds into foam-covered dystopias. In the classroom and at work, people speak and write as if a hostile lawyer were about to cross-examine them.

If our modern legal system goes too far, then the solution is recalibration, not revolution.

Howard seems nostalgic for a past where (according to the book) people trusted authority and authorities kept order by using discretion reasonably. But he says that the fear of legal liability has caused a flight from judgment, trust, wisdom, and authority.

There is no question that Howard has important ideas for reform—in fact, at this point probably more people than not agree with him on most of the issues the book covers (among other things, his earlier books on the subject were widely read). For example, like Howard, a great many people believe that juries can act erratically and that regulators sometimes overemphasize risk (though a key regulator—the SEC—seems recently to have done just the opposite). Many also agree with Howard’s view that it is now too easy to bring certain kinds of discrimination suits and that we should sometimes use specialized courts staffed with experts to limit abusive litigation.

But the book fights one form of extremism with another, taking the reader into a zone of rhetorical overkill. It is not realistic to portray the present system as a fall from grace because there was never a legal Eden in this country. In the past, rights and remedies were often too limited. For example, even when defectively designed cars and household products inflicted serious injury, essentially senseless legal formalities sometimes prevented victims from securing compensation. More generally, authorities lost the public’s trust for a reason: they sometimes abused it (for example, at the expense of minorities).

In other words, if today’s system makes people justify too much of their behavior, the earlier approach required them to do too little. Our modern system has fixed serious defects and if it goes too far—no doubt it often does—then the solution is recalibration, not revolution.

Yet revolution is what Howard demands. “Decades of accumulated law and bureaucracy” must be cleared out. We must build a “legal framework that defines and protects an open field of human freedom.” But what is this framework? Some of Howard’s suggestions are concrete—specialized health courts, for example. But most are vague and aspirational. “Restore the authority of judges to draw legal boundaries”? “Replace the vocabulary of rights with the idea of balance”? “Liberate teachers and principals from legal rules and processes”? “Decentralize public services to the extent feasible”? “A radical overhaul of government”?

The problem with assertions at once so extreme and so general is that they bypass the hardest challenge that law faces: correcting abuses without creating new opportunities for abuse. Some plaintiffs abuse remedies, just as some defendants abuse defenses. When we recalibrate to make either one harder we always make the other easier. There is no practical way to eliminate abuse—only to reduce it on a net basis, through a process of experimentation that takes time.

So why does Howard skip over this intractable reality? We fear it is becaue he, like many reformers, believes that without simplifying illusions to outrage and energize us, we won’t take action to fix important problems. Why else would he find it necessary to speak of golden ages that never existed, or to focus on the way in which human opportunism or delusion affect present practices while neglecting their inevitable role in practices following reforms?

Legal-reform movements can undergo the same boom and bust cycle that afflicts certain sectors of the economy. For example, the dot-com bubble involved overextension, baseless posturing and outlandish business plans accepted by investment managers driven by delusional market conditions. But it also involved enormously important innovations—developments that achieved astonishing increases in productivity and social welfare. No one has been able to show how it would have been possible to set up the conditions needed for this wave of true innovation to occur without also attracting many participants that the markets would have been better off without.

Likewise, there doubtless has been a bubble in certain kinds of rights to legal recovery, one that (like other bubbles) is perpetuated by delusion and self-interest. But this bubble in rights has also created enormous benefits for society. Indeed, it has eliminated abuses so basic that it is hard now to imagine how our society could so recently have accepted them. There does not seem to have been any way to create the conditions needed for these critically important developments without also inviting opportunists, assuming they were sufficiently shameless, to abuse the initially sound framework.

In the case of the dot-com crash, it would not have made sense to retreat from the technology sector generally—as opposed to simply trying harder to be rigorous in analyzing each new business plan on its own merits. There is likewise no general rule that will sift out the valuable efforts to enforce and to recognize new rights from those that are self-indulgent and destructive. Separating the first from the second—and creating conditions for the first without inviting the second—is just too hard a challenge to be amenable to generalized solutions.

There are two options open to those who try to improve the law. The first option uses analysis—it describes not just what a proposed reform will gain but also what it will sacrifice. The second option uses rhetoric—it emphasizes a proposal’s upside, but obscures its costs. Reformers frequently choose the second option, because they would otherwise risk failing to inspire their audience to take action. Howard follows this tradition, and it may be that his generalizations and rhetoric will finally convince more people that now is the time to act.

But it is risky to try to motivate people to change the law by downplaying what they will sacrifice in doing so—this tends to start a process that eventually recreates in new forms the worst things (excess and rampant opportunism) about the problems one is trying to solve. The overall result of Howard’s agenda, were it to succeed, may be only to change the identities of the people or institutions that get hurt, and not to reduce our net exposure to legal error.

Eric Posner is a professor of law at the University of Chicago. Robert Silver is a partner at Boies, Schiller & Flexner.

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