02.17.09

So Many Laws, So Little Time

We have become a culture of rule followers, driven to frame every solution in terms of existing law or possible legal risk.

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LAW EVERYWHERE

Something’s amiss when a girl in kindergarten, all of 40 pounds, is led away in handcuffs by police. That’s what happened in the spring of 2005 in St. Petersburg, Florida. Equally strange, the whole episode was taped and shown on national television. There’s the little girl, hair neatly braided, going from desk to desk, throwing books and pencils on the floor, tearing papers off the bulletin board, and methodically destroying her classroom. The assistant principal circles her, arms outstretched as if in a linebacker drill, but assiduously avoiding contact. (Why not just hold on to her? You wonder, watching… Is the child a hemophiliac?) The little girl is eventually steered into the principal’s office, where she continues to wreak havoc on the orderly piles of paper and announcements tacked to the wall. Eventually the police arrive and handcuff the five-year-old. She screams. The tape ends.

All this law has provided ample fodder for late-night comedians, who regale us with the latest legal idiocy. No one could make up stories like the first-grade boy in North Carolina suspended for sexual harassment when he kissed a first-grade girl.

For as long as there have been schools, teachers have had to deal with unreasonable five-year-olds. Calling the cops isn’t the time-tested solution. Let’s rewind the tape and handle this sensibly. Problem: temper tantrum in kindergarten classroom. Solution: Ask the girl to stop. When she refuses, hold her by the arm, preventing more destruction. If necessary, take her to another room until she calms down. Doing what’s right here isn’t rocket science.

But teachers in America can’t do this. Taking hold of a child’s arm is verboten—touching is taboo, except to prevent harm to others. So a five-year-old ends up in handcuffs.

The rule against touching a student is now pretty much universal in America. One of my daughter’s college roommates, teaching beginning swimmers in East Harlem, was strictly forbidden to hold her students up in the water (to prevent drowning) until she had asked and received explicit permission from each child. She had to ask not once, but each and every time she did it. “May I put my hand on your stomach?” over and over again. The youngsters realized this made no sense. “Why do you keep asking me if you can put your hand on my stomach?” But she had been instructed never to make contact without asking the question.

Physical contact is one of those subjects thats a little touchy. We can all agree that anyone who has a tendency to act inappropriately around children should be shown the door, or put in the slammer. There are some people, as we learned with the Catholic priest scandal, who have this problem. But a blanket rule against physical contact is itself weird, almost as disturbing as contact that’s a little too friendly. Young children need physical reassurance. Sometimes older children need physical restraint, or least the fear of physical restraint. Otherwise some students will flout the teacher’s powerlessness.

OK, let’s change the rule about physical contact. That’s our instinct whenever we hear stories like this. But what would the rule say? “Appropriate conduct is acceptable”? That should be implicit in a free society. Nor do we need a rule to say that physical abuse of students is forbidden. We know that already as well. The problem is in implementation: How does law sort out what’s appropriate in this or that situation?

The rule against physical contact isn’t really there to protect children. The ban on touching is meant to protect teachers and schools. You bet there’s a rule against any touching—doing that could get you sued. Teachers have had their lives ruined by grabbing hold of a misbehaving child. Josh Kaplowitz, a young college grad in the Teach for America corps, put his hand on the back of a misbehaving seventh grader to make him leave the classroom and was sued for $20 million. The parents even got him criminally indicted. After two years of hell, the criminal case was finally dropped. The lawsuit was settled with the school paying $90,000. Other teachers have had their careers ruined by an accusation not of any sexual misconduct but just of holding on to the child, or, in one case of a music teacher, of positioning a child’s fingers on a flute.

No organization can function effectively unless people can make choices and someone else has responsibility to hold those people accountable. The teacher must be free to do what makes sense, including restraining disruptive students and putting an arm around a crying child. And the principal must be free to make judgments—for example, about the credibility of the student, or about whether he has a queasy feeling about the teacher. Today the principal lacks that authority, and looks to grab hold of a legal lifeline. But how can he prove that the conduct was appropriate, or that the teacher is creepy? So the rule, by default, is zero contact.

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We must draw legal boundaries here. The only way to normalize adult-child relations is to remove law from incidental relations: No claim should be allowed without credible allegations of overt sexual misconduct. For conduct short of that, people must have the freedom to deal with people as they think best—for example, by the principal’s reassigning or firing the teacher about whom he has qualms.

Straining daily choices through a legal sieve basically kills the human instinct needed to get things done. Law applied to ordinary decisions leads to bad choices, which leads to more law, which leads to worse choices. Pretty soon law is everywhere, separating people from their instincts of right and wrong.

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Rules can’t make decisions, to paraphrase the philosopher Joseph Raz, any more than a book on chess can tell you how to win. But that’s the core assumption of modern law. In an effort to avoid human error, we have created legal structures based on an unspoken premise that correctness can be proved or programmed in advance.

Two great intellectual currents came together over the past century to bring America to this state of hyper-legalism. The first, which grew naturally out of the Industrial Revolution, is the idea of organizing how to do things. Frederick Winslow Taylor, the father of scientific management, preached the idea of creating systems in order to increase productivity. Organization is undeniably essential for complex products; Henry Ford’s assembly lines proved that. Regulatory organization is also necessary to rein in the abuses of big business. Today we assume unquestioningly that any activity will be more effective if we detail in advance how to get the job done. That’s how we’ve organized schools. Instead of an assembly line of machines, schools are organized by a kind of assembly line of rules. Do this and then do that, and then fill out forms that say you did what the rules required.

The second social current, which burst out of the 1960s in an explosion that still reverberates 40 years later, is based on a new idea of individual rights: Let any individual who feels aggrieved bring a legal claim for almost anything. Fairness, the thinking went, would be guaranteed by letting people assert their own rights. The abuses of discrimination were long overdue for a remedy and required a dramatic shift in law. But looking at disputes as a matter of individual rights had implications far beyond patterns of discrimination. These modern rights gave undefined powers to individuals to assert claims over other free individuals. Unlike constitutional rights, which shield citizens from state power, these new rights gave citizens a sword against other free citizens. To legal thinkers in the 1960s, however, legal self-help seemed like the perfect solution to the conflicts of a diverse society. Let each defendant demonstrate why his actions were appropriate. Why didn’t we think of this before?

These two great currents of social organization—prescribing rules to specify how to do things and affording individual rights to invoke a legal proceeding—now sweep us along through our day like a mighty river, causing us to cling to legal logic for ordinary daily choices. To stay afloat, we must constantly be prepared to answer this question: Can you show this was done properly? Where the rallying cry for our revolutionary forebears was “No Taxation Without Representation,” today’s cry is “No Decision Without Justification.”

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All this law has provided ample fodder for late-night comedians, who regale us with the latest legal idiocy. No one could make up stories like the first-grade boy in North Carolina suspended for sexual harassment when he kissed a first-grade girl. Emails fly around the country with stories of crazy lawsuits, many of which never happened but are nonetheless believable in a legal system disconnected from accepted norms of right and wrong. People behave in genuinely bizarre ways. The warning labels that manufacturers plaster all over products are priceless. There’s a “wacky warning contest” every year that gives prizes to the stupidest labels—for a letter opener, “Caution: Safety Goggles Recommended.” My favorite is the fourth-place winner in 2003—a five-inch fishing lure, with three-pronged hook, with the following legend on its side: “Harmful if swallowed.”

The totality of stupid rules and lawsuits does not come close, however, to describing the effects of the modern legal order. It has changed our society. In this new legalistic culture, people no longer look inside themselves to do what’s right. Instead they focus on possible legal implications. What if something happens? How will you justify your decision?

Defensiveness has swept over the culture like a giant wave, drenching daily choices in cold water. Doctors routinely order tests and procedures that they don’t believe are needed—squandering so many billions of dollars, according to some estimates, that the waste could provide health insurance to the 47 million Americans who are uninsured. Hardly any disagreement in the workplace is far from the threat of a possible discrimination claim. Teachers and principals spend their days filling out forms and “making the record clear,” just to show they’ve been attentive to legal concerns. Authority has been turned upside down. A 2004 survey by Public Agenda found that 78 percent of middle- and high-school teachers in America have been threatened with lawsuits or accused of violations of rights by their students.

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All these rules and rights, we’re told, are just the price of living in a crowded society, necessary to ensure fairness and to make the institutions of society work properly. Maybe things were simpler for our pioneer forefathers, but modern society is diverse, with many different values. Detailed legal codes and processes are needed to keep society in working order.

But the institutions of modern society are not in working order. Schools have been in a steady decline for decades. Reforms are passed almost every year, with little or no effect. Health care is like a nervous breakdown in slow motion.

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We have it backward. The legal shackles that frustrate teachers, doctors, and managers in daily dealings are not the inevitable price of a working social order. Modern law is a main cause of the decline of our social order. Schools and hospitals are failing in part because the people within them no longer feel free to make decisions to make them work.

America indeed is in a crisis—a crisis of individual freedom. We have lost the idea, at every level of public life, that people can grab hold of a problem and fix it. We have become a culture of rule followers, driven to frame every solution in terms of existing law or possible legal risk. Gradually, without noticing when it happened, we’ve lost our ability to make the choices needed to run a society.

RELATED: Read a piece by Philip K. Howard on what President Obama can to do bring about real change in America.

Philip K. Howard, a lawyer, is the author of Life Without Lawyers: Liberating Americans From Too Much Law, just released by W.W. Norton, and the bestselling The Death of Common Sense. He is chair of Common Good and advises leaders of both parties on legal and regulatory reform.