Life Without Lawyersreviewed by Philip Greenspun; March 2010
This is a review of Life Without Lawyers: Restoring Responsibility in America by Philip K. Howard, published in 2009. This is a sequel to The Death of Common Sense.
The book opens moderately strongly with a discussion of a legal philosophy in England that prevents judges from making rules that would "discourage desirable behavior", e.g., holding a municipality liable when someone drowns despite a "no swimming" sign because it would force the town to close off access to the sandy beach. I was reminded of a 2002 trip to Alaska, supposedly the only part of the U.S. unfettered by rules and crowds. The University of Alaska in Fairbanks had a nice grass field, some of the only grass for a few hundred miles in all directions. They had installed a sign, almost as big as the field itself, disclaiming liability for use of the field and noting that using it for recreation is not "condoned" (see photo at top). It seems that someone playing soccer had been injured and sued (maybe not the university but some other grass owner in Alaska) and the university decided that they couldn't handle the potential liability. So now people are encouraged to stay home and watch TV.
See an Eric Cartman-sized kid waddling down your street? Howard says blame the government, lawyers, and our rule-bound society. A paranoid government has removed all of the potentially dangerous equipment from playgrounds. But it turns out that kids' favorite equipment are the ones that have some element of risk. So the playground isn't fun anymore. Paranoid parents won't let their kids roam the neighborhood anymore: "one study found that the range of exploration from home by nine-year-olds is about 10 percent what it was in 1970. Only 15 percent of children walk or bike to school, compared to half in 1970." Dodgeball, kickball, red rover, and tag? Banned. Kids like challenges and testing their limits, according to Howard, but without risk there isn't much challenge and there really isn't a limit. Howard says that since kids can't or don't want to go outside anymore, they stay inside and get fat.
How are they doing in other countries? Howard notes that "Germany has adventure playgrounds that are stocked with scrap lumber, nails, and hammers, so children can come and build things, and then tear them down and build something else." [note to self: investment opportunity in Band-Aid retail over in Germany?]
According to Howard, nearly all of the idiotic practices of operating rule-bound are on display in America's public school system. He starts off with a 2007 story about 14-year-old Mariya Fatima having a stroke during class in Jamaica High School in Queens, NYC: "No one called an ambulance for ninety minutes because a rule prohibited teachers or nurses from calling 911 without the principal's permission."
Howard is down on individual rights, rather than group rights, and especially so in the public schools. A child's right not to be touched by teachers turned into one school calling the police to restrain a 5-year-old having a tantrum. A violent autistic child's right to be in a mainstream classroom leads teachers and students to develop "evacuation drills" to get away; "after almost two years of legal hearings and thousands of dollars of expense, the school finally received the final order [from a judge] in the spring of 2004 that the child was unsuited to be in the classroom with other students." A science teacher couldn't take a class on a nature hike because the trail was not wheelchair-accessible.
Howard talks about the bureaucratic attempts to make public schools more effective by... making them more bureaucratic, with additional tests and procedures: "In 2004, Common Good did an inventory of all the legal rules imposed on a high school in New York City. It found thousands of discrete legal requirements, imposed by every level of government. There was no act or decision--how to be fair, how to provide feedback, how to arrange the classroom, how to clean a window, how to keep files, how to order copier paper--that wasn't covered by a rule. Teachers, like most people, hate bureaucracy. A 2007 California study on teacher retention, trying to understand why 18,000 teachers quit each year, found that bureaucracy was the leading factor."
The bureaucrats like credentials and a big part of No Child Left Behind is to make sure that teachers get education degrees, especially master's and Ph.D.s in education. Sadly, "In an evaluation of New York City teachers in 2005, Harvard Professor Thomas Kane found no correlation between certification and a teacher's effectiveness. ... A similar study in Los Angeles found that 'whether a teacher is certified or not is largely irrelevant to predicting his or her effectiveness.'" The main beneficiary of laws like these are schools of education that get paid to issue degrees.
Howard goes over the familiar ground of how it is effectively impossible for public school systems to get rid of ineffective teachers. He gives it an unfamiliar spin, attributing the layers of protection for a teacher's job to our obsession with individual rights. The teacher has tremendous rights to due process that can cost years and hundreds of thousands of dollars if a school system is determined to fire a teacher for not being able to teach (essentially the state incurs the same costs that it would bear for a murder trial in order to fire an unwanted teacher). Group rights, on the other hand, are devalued. So the students' group right to be taught is not taken into account.
Howard never addresses, however, what to me is the central problem of our schools and universities: reliance on the lecture method of instruction, which has been found by researchers to be ineffective. I wrote a lot more about this in "Universities and Economic Growth". The idea that everyone can learn in lock-step has permeated our culture to the point where it is destroying any competitive advantage that we might once have had over other countries. Our schools, universities, and corporations rely on the least efficient and effective training technique available, i.e., lectures and a one-size-fits-all-students syllabus. Other countries' educational systems might not be any better but they certainly cannot be any worse and they will almost always be far cheaper.
I was flying the other day and discussing the FlightSafety Cessna Mustang type rating course, a two-week mixture of classroom and simulator. FlightSafety is owned by Warren Buffett and is considered one of the top jet training schools. There are two aspects of the Mustang that pilots need to learn. One is how to fly a two-engine jet after one of the engines has failed. This involves correcting the aircraft's tendency to fly sideways and accepting the reduced performance. The second aspect is managing the Garmin G1000 avionics. The experienced instructor with whom I was flying said "It is ridiculous that they give the same course to a guy who has flown a single-engine piston airplane with the G1000 for 1000 hours already, but has no idea how to fly a jet, and to a guy who has 10,000 jet hours in a 1975 Lear and has no idea how to use the G1000 or any other glass cockpit." The result? Highly skilled workers in the U.S. economy spend at least an extra week away from family and friends, waste the cost of seven extra nights in a hotel, and don't learn as much as they could in an adaptive computer-based instructional program.
Life without Lawyers cites research that people work much less hard in an organization where laziness and incompetence are not punished. Humans do not like free riders. The civil service, according to Howard, is the ultimate free rider-plagued environment and therefore the most demoralizing for people who might otherwise have been conscientious workers. How old is the problem? Howard notes that Teddy Roosevelt "was furious to discover that as president he had no authority to get rid of people not doing the job." Howard claims that even the incompetent workers don't benefit in the long run:
The flaws of bringing law down to personal judgments quickly become apparent when the lawsuit begins. A lawsuit over individual accountability turns into a trial over the person's worth ... Having to "prove" why a person isn't working out in a job ... transforms accountability into a kind of divorce proceeding, boiling over with emotion. ... Putting individual accountability into a legal cauldron is a recipe for bitterness, obsession, and fear. The supervisor, co-workers, and lawyers spend months trying to construct a case with objective proof of incompetence and bad judgment. All this is recorded in affidavits and deposition transcripts. The personal disappointment of the job not working out, which would be quickly forgotten if the individual just got a new job, becomes a crusade on both sides. The claim ends up consuming the life of the person supposedly protected.
I am pretty sure that Howard gets this wrong. A government job, on average, pays twice as much as a private-sector job. The vast majority of incompetent and ineffective government workers are never afflicted with dismissal or a lawsuit. They put in their 20 or 30 years, retire with a full pension, and spend the last 40 or 50 years of their life cashing inflation-adjusted checks courtesy of the taxpayers. A kid who starts with the MBTA in Boston at age 18 with no college education can earn an above-average salary for driving a bus. He can retire at age 41 with a full pension and never have to worry about finances. It does not make sense to assert that our 40-year-old who is about to retire would be better off in a system where it was possible for him to be fired.
Evidence that Howard is wrong about public employees is to look at what happens to government workers who do leave their jobs. Are they snapped up by private employers hungry for great managers, leaders, and doers? No. Former government workers who end up in private industry are almost invariably working for government contractors or lobbying their former agency. It seems reasonable to argue that taxpayers would be better off if they didn't have to pay an unproductive worker for two decades until his retirement and then for five decades afterwards (and then pay his spouse for another decade after the worker dies). But Howard failed to convince this reader that the workers would somehow be better off.
Howard cites an example of one state that managed to introduce accountability into the lives of civil servants: "In 1996, Georgia Governor Zell Miller performed a minor miracle of public administration--he sponsored a law that eliminated civil service protections for new state employees." Howard gives anecdotal evidence for increased productivity among Georgia's new government workers, but it is not convincing.
Howard rather insanely advocates "programmed turnover" for government workers. Some private companies insist that managers rank their subordinates and that a certain percentage of the workforce be fired every year. Companies do not believe that 100 percent of their workers are of acceptable quality. So there is a precedent for this idea, but can we imagine a school system routinely getting rid of its lowest performing teachers? Or the Department of Motor Vehicles shedding the surliest and slowest 10 percent of its workers each year?
Even if federal government workers wanted to get something done, they probably couldn't. Howard notes that "Professor Paul Light calculated that there are now as many as 32 layers of federal officials between the person doing the job and the person on top. (The rule of thumb for well-run companies, by contrast, is five layers.)"
In advocating smaller government bureaucracies and more responsibility for the managers who remain, Howard quotes George Washington: "My observation is that whenever one person is found adequate to the discharge of a duty... it is worse executed by two persons, and scarcely done at all if three or more are employed therein."
On page 142, Howard talks about how great Americans are compared to hidebound Europeans. We aren't stuck in a guild or a caste by reason of birth and can move around freely from job to job: "Imagine living in France--in the luggage factory for life. It's not a good system. That's one of the reasons their economy grows at barely more than half the rate of ours." What he doesn't mention is that much of the U.S. "economic growth" rate as measured by economists is really "population growth" due to immigration. A growing population does make it easier for the government to collect taxes but does not necessarily make life better for Americans who were here already. France has about 64 million people today; she had 42 million in 1950 ( source). France has grown by 50 percent while the U.S. has grown 100 percent (we have doubled to about 310 million). If we moved 20 million people from France to the U.S. and they continued to produce at their former rate, that would give a big boost to U.S. GDP and the French G.D.P. would plummet. That would not mean that the U.S. had a better system or was a better place to live.
Howard decries the distortions and costs of medical malpractice and personal injury lawsuits. He notes that "the average size of jury verdicts in accident cases doubled from 1996 to 2003--to more than $1.2 million."
He wonders why more judges can't dismiss bogus cases, celebrating the exceptional judges who are aggressive and decisive: "In 2002 Federal Judge Janis Jack, in Corpus Christi, Texas, found herself presiding over almost 10,000 claims on behalf of alleged victims of silicosis. ... In the 1990s a group of lawyers who had represented asbestos clients started bringing lawsuits on behalf of people who claimed they had silicosis. ... Judge Jack did something almost unique in the annals of modern litigation. She took it upon herself to investigate the underlying validity of the claims. Judge Jack spent more than a year researching the science of silicosis and reviewing the actual files of the claimants. What Judge Jack found was that the claims were a sham. The litigation had basically been mass-produced by lawyers who advertised for potential plaintiffs, invited them to a mobile X-ray truck, and then paid doctors to sign their names on preprinted diagnoses. ... One doctor, responsible for more than 1200 plaintiffs' diagnoses, made all of his diagnostic evaluations in less than 72 hours. Two-thirds of the claimants had previously filed asbestos claims."
Howard proposes special medical malpractice courts (as I did in my health care reform proposal) and talks about how it will never happen because trial lawyers have too much political influence, noting that these folks are the Democratic Party's "second-largest source of campaign funds." [Indeed, some of the Democratic Party's most prominent members have themselves been trial lawyers, e.g., John Edwards, who made his fortune suing ob-gyn doctors.]
In the time since he wrote The Death of Common Sense Howard has had a lot of contact with national politicians. It has not made him more sanguine about the U.S. resolving its problems politically. Howard says that special interests can and will block almost any attempt to alter the status quo and the cost of special interest influence goes far beyond the obvious expenditures on pork barrel projects.
The biggest fix to the U.S. political and legal system that Howard proposes is essentially zero-based legislation. Scrap all of our existing laws and start over, deciding which ones we needed. Do we need to spend trillions of dollars over the decades subsidizing wealthy agribusiness? The status quo says yes; Howard believes that in a start-from-scratch rethinking of our legal system we would decide "no".
The second big fix that Howard proposes in the book is increased "responsibility" by citizens and a more prominent role for voluntary "civil society" as opposed to coercive government. Howard looks back with approval to the good old days of mutual aid societies, charities, and professionals donating services to the needy. He attributes the decline to a change in the character and habits of the American people. Howard does not consider the policy that a larger government has displaced private initiative and civil society. Consider the medical doctor who in 1915 provided free care, as time and inclination permitted, to the poor. His modern counterpart spends perhaps 20 percent of the working day dealing with insurance or Medicare/Medicaid paperwork. Given this new billing paperwork task, how does the modern doctor have any time left to volunteer? And why should our modern doctor volunteer to help the poor? The government has stepped in with Medicaid.
Consider the average working parent. When the government consumed 10-15 percent of GDP, the working parent put some effort into mutual aid societies and church groups. Now that the government spends nearly 50 percent of GDP, the worker no longer has much discretion over time or money. He is already working nearly half the year for federal, state, and local bureaucracies. Those bureaucracies have already decided how to spend a large fraction of the fruits of his productive efforts. In my opinion, it is unrealistic to ask someone to work two jobs, pay taxes at modern U.S. rates, interact with his or her family, and then also give something extra to a neighborhood or social group.
Life Without Lawyers says that we need new legal doctrines and a zero-based rewriting of our legal system. The author also says that special interests are able to ensure the preservation of the status quo.
The book says that we need more civil society but gives no explanation for how the social institutions that flourished prior to the ratification of the Sixteenth Amendment (legalizing federal income tax) in 1913 are supposed to flourish in an age where the local, state, and federal governments have grown to sizes that were unimaginable to the founders of our country (see my review of The Dirty Dozen). The unfunded pension obligations for retired government workers that governments have dumped on today's workers are probably a larger fraction of those workers' resources than they previously might have donated to charity.
According to Howard's main text, we've painted ourselves into a corner. Yet because nobody wants to end a book with logical advice such as "emigrate if you don't like the current system", Howard ends with an "agenda for change" that could never be implemented.
I have an idea which is similar to the zero based legislation suggested at the end of this article. That would be to constitutionally provide a sunset for all statutes and regulations. The sunset could be fairly long, for example, somewhere between 20 and 50 years, maybe less for regulations. We don't need legislators and regulators readopting non-controversial laws and regulations every few years. But every new statute would receive the sunset and all existing laws would receive the sunset as well, at the time the amendment is adopted by the states. This solves the issue presented not only on a one-time basis, but going forward as well.
-- Robert Girard, March 16, 2010
"Germany has adventure playgrounds that are stocked with scrap lumber, nails, and hammers, so children can come and build things, and then tear them down and build something else."
No it doesn't. As the parent of a six year old in Munich, I would have noticed. (OK, I can't speak with total authority on every single adventure playground in Germany. But I can say that what the author is describing certainly isn't the norm)
The general point, though, is valid. What Germany does have is proper playgrounds with proper things to swing and climb on at heights from which a small child could hurt itself, not the ridiculous little six-inches-off-the-ground things I've seen on visits to new York.
-- Alan Little, March 17, 2010
Alan: The movie "7 Up" about English 7-year-olds circa 1970 has a scene where all of the subjects are running around just such an "adventure playground". So maybe the author got confused about Germany versus England.
-- Philip Greenspun, April 7, 2010
What's so discouraging about this review is Greenspun's uncritical acceptance of the factually-challenged fruit of Libertarian think tanks. For example he asserts "A government job, on average, pays twice as much as a private-sector job."
This is, of course, a lie, or at best, bullshit. See Robert Reich's correction to this whole line of thinking, for just one example.
The truth: When comparing government employees with the private sector employees in reality, that is comparing similar jobs (apples to apples, attorneys to attorneys, and total compensation including benefits), the public sector pays 4-9% less than the private sector. If Greenspun gets his way, odds are that discount will disappear because government workers will not have the job security that previously made them willing to accept lower pay.
Notice that there's no mention of the historic reason civil service exists: Elections used to mean the wholesale re-appointment of all public employees down to local postmasters, both politicizing jobs, and discarding expertise.
Reading the likes of Howard, one would assume the locus of incompetence in the world was the public sector, but the private sector certainly has its incompetence too. Why else would Dilbert be on the comic pages?
Interestingly in the previous review of Howard's work, Greenspun even blames Enron's collapse on government action. It couldn't have been fraud, exposed...?
Finding government malfeasance is like shooting fish in a barrel, too. Enron's board meetings weren't public. Could the perception of public incompetence be magnified because so much private malfeasance is under the radar? And do the words Enron, Adelphia, Worldcom, Silverado Savings and Loan, and Goldman Sachs mean nothing?
Also conspicuous in their absence are the many examples of government bureaucracy that are *more* efficient than the private sector. Social Security and Medicare have far lower costs than their private equivalents. Single-payer, government-managed health care worldwide is roughly half as expensive as the U.S.' mostly privatized system.
Outcomes are far better too, whether comparing life expectancy or infant mortality, publicly-managed health care beats a privatized system. The comprehensive comparison of health care delivery systems world wide conducted by the WHO ranks the U.S. 37th in outcomes, between Costa Rica and Slovenia. McClatchy news reports that it's as though the U.S. has the health care of Costa Rica, but pays six times more for the privilege.
One should note also that traditionally the anti-libertarian de-privatizing of goods and services was taken as the direction of real progress. Not having to pay a toll to use a road amounted to a good thing.
Of the specific items in these reviews of Howard's work, I don't know which is worse: the conclusions about housing or schools.
Howard believes that building codes prevent the homeless from building shanty towns that, while ugly, would at least keep out the weather. So building codes are really the culprit when we look at the homeless, right?
Except for the actual history back here on planet earth. What really happened? The giant state-run warehouses for the insane and disabled were shut down, with the promise that smaller, more humane "half-way houses" would be funded within communities. Except the Reagan administration didn't authorize that funding. After all, those patients now wandering the street were probably faking, or behaving like crazy people on purpose...right?
Add that to Reagan's 1986 tax law removing a subsidy for building rental housing, and voila! An epidemic of homelessness. Check for yourself. The charities dealing with the homeless often started their work in the mid-'80s, not when building codes were introduced decades earlier.
Meanwhile, shutting down public education has been a goal of the oligarchs for decades now. Their clever propaganda seeks to cast teachers as greedy bureaucrats, while ignoring the far larger greed of, e.g., the oligarchs funding such propaganda.
A classic case of "straining at a gnat while swallowing a camel."
Previously, these "masters of the universe" have tried to make "school choice" the driving force behind this privatization campaign, sponsoring multiple school voucher initiatives throughout the nation. These generally fail because it becomes clear they are simply subsidies to those already using private schools. In a typical state where education costs roughly $8,000 - $10,000 per student, and the proposed vouchers are $2,000.
The current propaganda seeks to solve school's "problems" by adopting merit pay for teachers, testing to see what value teachers have added, and making charter schools...all of this primarily to bust unions, who fund the campaigns of their public sector opposition.
Literally none of these proposals withstand any scientific scrutiny. The "best" teacher, according to tests one week can turn into the "worst" teacher according to tests the next. Yet the propaganda, with the very best of production values, makes news with the likes of "Waiting for Superman"... a film about super teachers and their impacts.
Those debunking such propaganda note that "Waiting for Superman" ignores anything that contradicts the conclusions desired by the privatizers. For example, childhood poverty rates are far more accurate in predicting educational outcomes than testing. Omitted from the film: Althought the schools in Finland are "Waiting for Superman's" ideal, teachers there are tenured, well paid and unionized. Finnish childhood poverty is 3%. U.S. childhood poverty is 23%.
What's discouraging about this kind of review is Greenspun's uncritical acceptance of so much, and his ignorance about the history. If someone as clever as Greenspun can be fooled so thoroughly, what chance does the American public have?
Of course Libertarianism itself is a puzzling combination of heartlessness and narcissism that would have real difficulties raising a child, for example. It's recent failures (See Ravi Batra's Greenspan's Fraud, for one example) in managing the financial sector have lead to the "Great Recession," but the funding for Cato, Heritage and AEI certainly hasn't dried up, so the propaganda continues.
-- Adam Eran, March 5, 2011