Philip K. Howard (author)
Encyclopedia
Philip K. Howard is an American
lawyer
and writer. Based in New York
, Howard is a noted commentator on the effects of modern law and bureaucracy on human behavior and the workings of society. He is the Founder and Chair of Common Good
, a nonpartisan
, nonprofit legal reform coalition which is proposing a broad overhaul of American law and government.
Howard is the author of The Death of Common Sense (1995), a bestseller which chronicles how overly detailed law has similar effects as central planning; The Collapse of the Common Good (2002), which describes how fear of litigation corrodes daily interaction; and Life Without Lawyers (2009), which proposes rebuilding reliable legal boundaries to define an open field of freedom where people are free to focus on accomplishing their goals, not protecting themselves from legal interference. Howard is a periodic contributor to the op-ed pages of the New York Times, The Washington Post
, and the Wall Street Journal, and serves as a correspondent for The Atlantic.com. He also regularly speaks at universities, judicial conferences, think tanks, and other conferences, and has testified before both houses of the U.S. Congress.
Howard has attracted broad support for his ideas. In September 2010, New York Times columnist David Brooks
highlighted Howard’s work on “the responsibility deficit” and embraced his solution for a “great streamlining,” calling it “the crucial theme of the moment”. Howard’s speech at the 2010 TED conference was praised by TED’s founder, Chris Anderson, as “stunning” and something that he wished “every member of Congress, every Supreme Court justice would see”. Former New Jersey Senator Bill Bradley
praised Howard’s Life Without Lawyers as “a real wake-up call from one of America’s finest public minds,” while Washington Post columnist George Will
deemed it “2009’s most needed book on public affairs.” In November 2010, Howard was a guest on The Daily Show with Jon Stewart
, where he talked about starting a movement to streamline government and restore individual responsibility at every level of society.
Trial lawyers and associated interests are Howard's most vocal critics. They have accused him of having a “deep disregard for public use of the justice system” and favoring corporate over consumer interests. He has also been accused of offering a vision of American society that is too narrow, as Dahlia Lithwick
writes in her Newsweek review of Life Without Lawyers: “… the one thing scarier than a bus full of lawyers is a bus without them.”
Howard has worked closely with leaders of both major political parties
in the United States. He wrote the introduction to Vice President
Al Gore's
Common Sense Government, and has also advised a number of governors, including Democrat
s Lawton Chiles
of Florida
and Zell Miller
of Georgia
and Republican
s Jeb Bush
of Florida and Mitch Daniels
of Indiana
. He was also a special adviser on regulatory simplification to Securities and Exchange Commission Chair Arthur Levitt
.
Howard is a prominent civic leader in New York City
, responsible for chairing the committee that installed the “Tribute in Light
” memorial for victims of the September 11 attacks, and is Chair Emeritus of the Municipal Art Society
.
, and the University of Virginia Law School. His first policy job was at the Oak Ridge National Laboratory, where he worked for three summers in the civil defense group, led by Nobel Laureate Eugene Wigner, and published a monograph on post-war economic recovery.
Following law school, Howard worked at the law firm of Sullivan & Cromwell
, where he was a principal associate in the Chris-Craft case before the Supreme Court and was also in Kodak’s antitrust cases. As a young lawyer, Howard also became active in civic affairs, chairing the Zoning Committee of Manhattan Community Board 6 in Midtown and leading a number of battles against developers such as Harry Helmsley
.
In 1983, Howard founded Howard, Darby & Levin (subsequently Howard, Smith & Levin). That firm merged with the Washington firm Covington & Burling
in 1999, of which Howard became Vice-Chair. He remains a practicing partner in Covington’s New York office.
Howard became an officer and then Chairman of the Municipal Art Society of New York, which led the battle to save Grand Central Terminal. Among his other civic projects, Howard opposed the original tower at Columbus Circle, arguing that it would have cast a shadow across Central Park, championed new codes that would increase the signage and lights on Times Square, and built a coalition to persuade the Post Office to relinquish most of the Farley Building so that it can become a new Penn Station.
As a citizen volunteer, Howard pushed to streamline federal OSHA rules on worker safety and worked with EPA Administrator Carol Browner to make environmental rules more flexible.
Howard’s experience as a civic leader led him to explore why government seemed incapable of making sensible choices, even when officials wanted to. This led to writing The Death of Common Sense.
In 2001, a week after the 9/11 attacks, Howard was contacted by architect Richard Nash Gould who suggested that two spotlights be placed at the World Trade Center site. Along with David Rockefeller
, Howard organized a committee of leading citizens to support and fund such a project. The “Tribute in Light
” memorial went up on the six month anniversary of the attack.
, Bill Bradley, Thomas Kean
, George McGovern
, Jeb Bush, Newt Gingrich
, and Alan Simpson
. Before becoming the U.S. Attorney General, Eric Holder
was a trustee of the organization.
Common Good regularly organizes forums to study legal, educational, and governmental overhaul, hosting them jointly with think tanks such as the Brookings Institution
, the American Enterprise Institute
, and the Manhattan Institute
. These forums attract thought leaders from around the country. In 2008, Common Good launched NewTalk.org, an online forum that has addressed a wide range of policy challenges. Leaders who have participated in NewTalk discussions include New York City Mayor Michael Bloomberg
, Atlanta Mayor Shirley Franklin
, and former U.S. Comptroller General David Walker
.
Reforms championed by Common Good include:
The core flaw in the modern law, Howard argues, is the premise that law can dictate correct behavior by specific rules, and can determine the correct course of conduct by objective evidence in a trial. Law in a free society is supposed to set outer boundaries of unreasonable behavior, not be a multiple choice test or an ordeal by trial whenever there’s a dispute. These boundaries of law are supposed to define and protect an open field of freedom, Howard argues—to set “frontiers, not artificially drawn, within which men shall be inviolable” (quoting philosopher Isaiah Berlin
). Today, Howard argues, those legal dikes have burst, so people wade through law all day long. Instead of looking where they want to go, they go through the day looking over their shoulders.
Howard argues that the flawed conception of law as a way to compel correctness manifests itself in the assumptions of modern legal orthodoxy:
The essential paradox in Howard’s philosophy is that authority is essential for freedom. Only when the judge has authority to dismiss an unreasonable claim will people in society feel free in daily interaction to act on their reasonable judgment. Only when the official can use his common sense will government act sensibly, and be able to adapt to practical problems that constantly arise. Only when the teacher has authority to respond immediately to disorder can we build a culture of respect and order in America’s schools. The fear of abuse of authority has driven America to a hyper-legalistic society, which Howard argues causes constant failure and unfairness. Far better to have clear lines of accountability up a hierarchy—to appeal the judge’s unreasonable ruling, or fire the abusive official, than to prescribe in advance their decisions. By putting legal shackles on those with responsibility, Howard argues, we unintentionally put shackles on ourselves.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
and writer. Based in New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, Howard is a noted commentator on the effects of modern law and bureaucracy on human behavior and the workings of society. He is the Founder and Chair of Common Good
Common Good
Common Good is a nonprofit organization in the United States that advocates a basic shift in legal structures "to restore common sense to American law." In June 2008, the organization, founded in 2002 by Philip K...
, a nonpartisan
Nonpartisan
In political science, nonpartisan denotes an election, event, organization or person in which there is no formally declared association with a political party affiliation....
, nonprofit legal reform coalition which is proposing a broad overhaul of American law and government.
Howard is the author of The Death of Common Sense (1995), a bestseller which chronicles how overly detailed law has similar effects as central planning; The Collapse of the Common Good (2002), which describes how fear of litigation corrodes daily interaction; and Life Without Lawyers (2009), which proposes rebuilding reliable legal boundaries to define an open field of freedom where people are free to focus on accomplishing their goals, not protecting themselves from legal interference. Howard is a periodic contributor to the op-ed pages of the New York Times, The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
, and the Wall Street Journal, and serves as a correspondent for The Atlantic.com. He also regularly speaks at universities, judicial conferences, think tanks, and other conferences, and has testified before both houses of the U.S. Congress.
Howard has attracted broad support for his ideas. In September 2010, New York Times columnist David Brooks
David Brooks (journalist)
David Brooks is a Canadian-born political and cultural commentator who considers himself a moderate and writes for the New York Times...
highlighted Howard’s work on “the responsibility deficit” and embraced his solution for a “great streamlining,” calling it “the crucial theme of the moment”. Howard’s speech at the 2010 TED conference was praised by TED’s founder, Chris Anderson, as “stunning” and something that he wished “every member of Congress, every Supreme Court justice would see”. Former New Jersey Senator Bill Bradley
Bill Bradley
William Warren "Bill" Bradley is an American hall of fame basketball player, Rhodes scholar, and former three-term Democratic U.S. Senator from New Jersey. He ran unsuccessfully for the Democratic Party's nomination for President in the 2000 election.Bradley was born and raised in a suburb of St....
praised Howard’s Life Without Lawyers as “a real wake-up call from one of America’s finest public minds,” while Washington Post columnist George Will
George Will
George Frederick Will is an American newspaper columnist, journalist, and author. He is a Pulitzer Prize-winner best known for his conservative commentary on politics...
deemed it “2009’s most needed book on public affairs.” In November 2010, Howard was a guest on The Daily Show with Jon Stewart
The Daily Show
The Daily Show , is an American late night satirical television program airing each Monday through Thursday on Comedy Central. The half-hour long show premiered on July 21, 1996, and was hosted by Craig Kilborn until December 1998...
, where he talked about starting a movement to streamline government and restore individual responsibility at every level of society.
Trial lawyers and associated interests are Howard's most vocal critics. They have accused him of having a “deep disregard for public use of the justice system” and favoring corporate over consumer interests. He has also been accused of offering a vision of American society that is too narrow, as Dahlia Lithwick
Dahlia Lithwick
-External links:*...
writes in her Newsweek review of Life Without Lawyers: “… the one thing scarier than a bus full of lawyers is a bus without them.”
Howard has worked closely with leaders of both major political parties
Major party
A major party is a political party that holds substantial influence in a country's politics, standing in contrast to a minor party. It should not be confused with majority party.According to the Merriam-Webster Dictionary:...
in the United States. He wrote the introduction to Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...
Al Gore's
Al Gore
Albert Arnold "Al" Gore, Jr. served as the 45th Vice President of the United States , under President Bill Clinton. He was the Democratic Party's nominee for President in the 2000 U.S. presidential election....
Common Sense Government, and has also advised a number of governors, including Democrat
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
s Lawton Chiles
Lawton Chiles
Lawton Mainor Chiles, Jr. was an American politician from the US state of Florida. In a career spanning four decades, Chiles, a Democrat who never lost an election, served in the Florida House of Representatives , the Florida State Senate , the United States Senate , and as the 41st Governor of...
of Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
and Zell Miller
Zell Miller
Zell Bryan Miller is an American politician from the US state of Georgia. A Democrat, Miller served as Lieutenant Governor from 1975 to 1991, 79th Governor of Georgia from 1991 to 1999, and as United States Senator from 2000 to 2005....
of Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
and Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
s Jeb Bush
Jeb Bush
John Ellis "Jeb" Bush is an American politician who served as the 43rd Governor of Florida from 1999 to 2007. He is a prominent member of the Bush family: the second son of former President George H. W. Bush and former First Lady Barbara Bush; the younger brother of former President George W...
of Florida and Mitch Daniels
Mitch Daniels
Mitchell Elias "Mitch" Daniels, Jr. is the 49th and current Governor of the U.S. state of Indiana. A Republican, he began his first four-year term as governor on January 10, 2005, and was elected to his second term by an 18-point margin on November 4, 2008. Previously, he was the Director of the...
of Indiana
Indiana
Indiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
. He was also a special adviser on regulatory simplification to Securities and Exchange Commission Chair Arthur Levitt
Arthur Levitt
Arthur Levitt, Jr. was the twenty-fifth and longest-serving Chairman of the United States Securities and Exchange Commission from 1993 to 2001. Widely hailed as a champion of the individual investor, he has been criticized for not pushing for tougher accounting rules. Since May 2001 he has been...
.
Howard is a prominent civic leader in New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
, responsible for chairing the committee that installed the “Tribute in Light
Tribute in Light
The Tribute in Light is an art installation of 88 searchlights placed next to the site of the World Trade Center to create two vertical columns of light in remembrance of the September 11 attacks. It is produced annually by The Municipal Art Society of New York...
” memorial for victims of the September 11 attacks, and is Chair Emeritus of the Municipal Art Society
Municipal Art Society
The Municipal Art Society of New York, founded in 1893, is a non-profit membership organization that fights for intelligent urban planning, design and preservation through education, dialogue and advocacy in New York City....
.
Background
Howard grew up in eastern Kentucky, the son of a Presbyterian minister. He was a scholarship student at the Taft School, Yale CollegeYale College
Yale College was the official name of Yale University from 1718 to 1887. The name now refers to the undergraduate part of the university. Each undergraduate student is assigned to one of 12 residential colleges.-Residential colleges:...
, and the University of Virginia Law School. His first policy job was at the Oak Ridge National Laboratory, where he worked for three summers in the civil defense group, led by Nobel Laureate Eugene Wigner, and published a monograph on post-war economic recovery.
Following law school, Howard worked at the law firm of Sullivan & Cromwell
Sullivan & Cromwell
Sullivan & Cromwell LLP is an international law firm headquartered in New York. The firm has approximately 800 lawyers in 12 offices, located in financial centers in the United States, Asia, Australia and Europe. Sullivan & Cromwell was founded by Algernon Sydney Sullivan and William Nelson...
, where he was a principal associate in the Chris-Craft case before the Supreme Court and was also in Kodak’s antitrust cases. As a young lawyer, Howard also became active in civic affairs, chairing the Zoning Committee of Manhattan Community Board 6 in Midtown and leading a number of battles against developers such as Harry Helmsley
Harry Helmsley
Harry B. Helmsley was an Americanentrepreneur who built a company that became one of the biggest property holders in the United States...
.
In 1983, Howard founded Howard, Darby & Levin (subsequently Howard, Smith & Levin). That firm merged with the Washington firm Covington & Burling
Covington & Burling
Covington & Burling LLP is an international law firm with offices in Beijing, Brussels, London, New York, San Francisco, Silicon Valley, San Diego, and Washington, DC. The firm advises multinational corporations on significant transactional, litigation, regulatory, and public policy matters...
in 1999, of which Howard became Vice-Chair. He remains a practicing partner in Covington’s New York office.
Howard became an officer and then Chairman of the Municipal Art Society of New York, which led the battle to save Grand Central Terminal. Among his other civic projects, Howard opposed the original tower at Columbus Circle, arguing that it would have cast a shadow across Central Park, championed new codes that would increase the signage and lights on Times Square, and built a coalition to persuade the Post Office to relinquish most of the Farley Building so that it can become a new Penn Station.
As a citizen volunteer, Howard pushed to streamline federal OSHA rules on worker safety and worked with EPA Administrator Carol Browner to make environmental rules more flexible.
Howard’s experience as a civic leader led him to explore why government seemed incapable of making sensible choices, even when officials wanted to. This led to writing The Death of Common Sense.
In 2001, a week after the 9/11 attacks, Howard was contacted by architect Richard Nash Gould who suggested that two spotlights be placed at the World Trade Center site. Along with David Rockefeller
David Rockefeller
David Rockefeller, Sr. is the current patriarch of the Rockefeller family. He is the youngest and only surviving child of John D. Rockefeller, Jr. and Abby Aldrich Rockefeller, and the only surviving grandchild of oil tycoon John D. Rockefeller, founder of Standard Oil. His five siblings were...
, Howard organized a committee of leading citizens to support and fund such a project. The “Tribute in Light
Tribute in Light
The Tribute in Light is an art installation of 88 searchlights placed next to the site of the World Trade Center to create two vertical columns of light in remembrance of the September 11 attacks. It is produced annually by The Municipal Art Society of New York...
” memorial went up on the six month anniversary of the attack.
Common Good
In 2002, Howard formed Common Good, which advocates reforms to restore reliability to law and to rebuild authority structures needed to make common choices. The Advisory Board of Common Good includes a wide range of national leaders, including Howard BakerHoward Baker
Howard Henry Baker, Jr. is a former Senate Majority Leader, Republican U.S. Senator from Tennessee, White House Chief of Staff, and a former United States Ambassador to Japan.Known in Washington, D.C...
, Bill Bradley, Thomas Kean
Thomas Kean
Thomas Howard Kean is an American Republican Party politician, who served as the 48th Governor of New Jersey from 1982 to 1990. Kean is best known globally, however, for his 2002 appointment as Chairman of the National Commission on Terrorist Attacks Upon the United States, widely known as the...
, George McGovern
George McGovern
George Stanley McGovern is an historian, author, and former U.S. Representative, U.S. Senator, and the Democratic Party nominee in the 1972 presidential election....
, Jeb Bush, Newt Gingrich
Newt Gingrich
Newton Leroy "Newt" Gingrich is a U.S. Republican Party politician who served as the House Minority Whip from 1989 to 1995 and as the 58th Speaker of the U.S. House of Representatives from 1995 to 1999....
, and Alan Simpson
Alan K. Simpson
Alan Kooi Simpson is an American politician who served from 1979 to 1997 as a United States Senator from Wyoming as a member of the Republican Party. His father, Milward L. Simpson, was also a member of the U.S...
. Before becoming the U.S. Attorney General, Eric Holder
Eric Holder
Eric Himpton Holder, Jr. is the 82nd and current Attorney General of the United States and the first African American to hold the position, serving under President Barack Obama....
was a trustee of the organization.
Common Good regularly organizes forums to study legal, educational, and governmental overhaul, hosting them jointly with think tanks such as the Brookings Institution
Brookings Institution
The Brookings Institution is a nonprofit public policy organization based in Washington, D.C., in the United States. One of Washington's oldest think tanks, Brookings conducts research and education in the social sciences, primarily in economics, metropolitan policy, governance, foreign policy, and...
, the American Enterprise Institute
American Enterprise Institute
The American Enterprise Institute for Public Policy Research is a conservative think tank founded in 1943. Its stated mission is "to defend the principles and improve the institutions of American freedom and democratic capitalism—limited government, private enterprise, individual liberty and...
, and the Manhattan Institute
Manhattan Institute
The Manhattan Institute for Policy Research is a conservative, market-oriented think tank established in New York City in 1978 by Antony Fisher and William J...
. These forums attract thought leaders from around the country. In 2008, Common Good launched NewTalk.org, an online forum that has addressed a wide range of policy challenges. Leaders who have participated in NewTalk discussions include New York City Mayor Michael Bloomberg
Michael Bloomberg
Michael Rubens Bloomberg is the current Mayor of New York City. With a net worth of $19.5 billion in 2011, he is also the 12th-richest person in the United States...
, Atlanta Mayor Shirley Franklin
Shirley Franklin
Shirley Clarke Franklin is an American politician, a member of the Democratic Party, and served as mayor of Atlanta, Georgia from 2002 to 2010...
, and former U.S. Comptroller General David Walker
David M. Walker (U.S. Comptroller General)
David M. Walker served as United States Comptroller General from 1998 to 2008, and is now the Founder and CEO of the Comeback America Initiative.- Career as Comptroller General :...
.
Reforms championed by Common Good include:
- Creating special health courts. Common Good’s health court proposal, developed in a joint venture with the Harvard School of Public HealthHarvard School of Public HealthThe Harvard School of Public Health is one of the professional graduate schools of Harvard University, located in the Longwood Area of the Boston, Massachusetts neighborhood of Mission Hill, which is next to Harvard Medical School. HSPH is considered a significant school focusing on health in the...
(and funded by the Robert Wood Johnson FoundationRobert Wood Johnson FoundationThe Robert Wood Johnson Foundation is the United States' largest philanthropy devoted exclusively to health and health care; it is based in Princeton, New Jersey. The foundation's mission is to improve the health and health care of all Americans...
), is intended to bring reliability to medical justice, thereby avoiding the waste caused by “defensive medicineDefensive MedicineDefensive medicine is the practice of diagnostic or therapeutic measures conducted primarily not to ensure the health of the patient, but as a safeguard against possible malpractice liability. Fear of litigation has been cited as the driving force behind defensive medicine...
” and repairing the culture of distrust between providers and patients that impedes the open interaction needed for safe, effective care. Health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both doctors and patients could rely. The health court concept is supported by a broad spectrum of health care constituents, including the American Medical AssociationAmerican Medical AssociationThe American Medical Association , founded in 1847 and incorporated in 1897, is the largest association of medical doctors and medical students in the United States.-Scope and operations:...
, AARPAARPAARP, formerly the American Association of Retired Persons, is the United States-based non-governmental organization and interest group, founded in 1958 by Ethel Percy Andrus, PhD, a retired educator from California, and based in Washington, D.C. According to its mission statement, it is "a...
, and patient safety experts. It is vigorously opposed by trial lawyers, however, who say the proposal would limit the right to sue. In March 2010, President Barack ObamaBarack ObamaBarack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
sent a letter to Congress stating that he would support health court pilot projects. - Restoring teachers’ authority to maintain order. Common Good’s education efforts are focused on decreasing bureaucracy in schools and restoring educators’ authority to maintain order in their schools and classrooms. Common Good believes these are essential preconditions for successful schools and that the national education debate has not adequately considered or addressed the impact that overregulation and disorder have had on school culture and academic performance. Common Good advocates giving public schools the same freedom, and accountability, as charter schools. Common Good has worked with leaders around the country, including in New York, Indiana, and Colorado, to restore teachers’ authority and build a foundation for success in troubled schools.
- Defining boundaries of lawsuits. Drawing on the thesis of The Collapse of the Common Good, Philip K. Howard’s second book, Common Good has worked to build consensus around the need for judges to act as gatekeepers, establishing the boundaries of reasonable claims as a matter of law and protecting broader societal interests. Today, Common Good argues, there is a sense that anyone can sue for almost anything, and most Americans do not believe that the courts will protect them if they act reasonably. A 2005 poll revealed that only 16 percent of Americans would “trust justice” if someone brought a baseless claim against them. Common Good has brought together top legal scholars and judges to discuss how to reframe the roles of judges, so that they act not as neutral referees—deferring to whatever a party claims—but as representatives of the interests of society. In a Newsweek cover story in 2003 highlighting Howard’s arguments and Common Good’s work, then-Senator John EdwardsJohn EdwardsJohnny Reid "John" Edwards is an American politician, who served as a U.S. Senator from North Carolina. He was the Democratic nominee for Vice President in 2004, and was a candidate for the Democratic presidential nomination in 2004 and 2008.He defeated incumbent Republican Lauch Faircloth in...
challenged Common Good’s premise, arguing that civil court juries are “democracy in action.” Howard countered by saying that justice is supposed to be rendered by the rule of law, not a “mini-election” each time there’s an accident or disagreement in the workplace. - Radically simplifying law. Common Good believes that laws must be understandable to be effective, and that they should set public goals and general principles while leaving implementation to designated officials. Instead of laws telling people how to do their job, Common Good proposes clear lines of accountability.
- SunsettingSunset provisionIn public policy, a sunset provision or clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law...
old laws. The accumulation of law, Howard has argued, precludes democratically-elected officials from making critical choices. Congress must periodically revisit old laws, making new findings on their effectiveness and relevance.
Reform philosophy
Howard is focused on how modern legal structures undermine the ability of people to use practical judgment in daily choices. For people who deal with the public, such as teachers and doctors, the effect of too much law can be paralyzing, Howard argues. People who think about legal exposure no longer act on their best instincts, and instead focus on conduct that will provide objective markers in case there’s a dispute, such as the practice by physicians of “defensive medicine.”The core flaw in the modern law, Howard argues, is the premise that law can dictate correct behavior by specific rules, and can determine the correct course of conduct by objective evidence in a trial. Law in a free society is supposed to set outer boundaries of unreasonable behavior, not be a multiple choice test or an ordeal by trial whenever there’s a dispute. These boundaries of law are supposed to define and protect an open field of freedom, Howard argues—to set “frontiers, not artificially drawn, within which men shall be inviolable” (quoting philosopher Isaiah Berlin
Isaiah Berlin
Sir Isaiah Berlin OM, FBA was a British social and political theorist, philosopher and historian of ideas of Russian-Jewish origin, regarded as one of the leading thinkers of the twentieth century and a dominant liberal scholar of his generation...
). Today, Howard argues, those legal dikes have burst, so people wade through law all day long. Instead of looking where they want to go, they go through the day looking over their shoulders.
Howard argues that the flawed conception of law as a way to compel correctness manifests itself in the assumptions of modern legal orthodoxy:
- Making law too detailed is just a version of central planning—forcing both regulators and the regulated to “go by the book,” whether or not it makes sense. “Zero-tolerance rules” in schools compel principals to suspend young children for pointing their fingers like a gun. The solution, Howard argues, is for law to set goals and general principles, so people can use their judgment within legal parameters, and if there’s a disagreement, argue over what makes sense rather than over formalistic compliance.
- Letting people sue for anything injects fear and defensiveness into ordinary interaction—so that teachers, for example, are told never to put an arm around a crying child. The solution, Howard argues, is for judges to act as gatekeepers of reasonable claims, making rulings as a matter of law to define the boundaries of what people can sue for. Today judges see their job as neutral referees letting litigants claim almost anything. Tort reform—generally limiting claims—can reduce the exposure but does nothing to restore trust that justice will affirmatively defend your reasonable actions. Judges must have the authority to draw boundaries of reasonableness as a matter of law. Otherwise justice becomes a tool for extortion. We would never let a prosecutor seek the death penalty for a misdemeanor, Howard argues, so why do we let a private litigant sue for millions for a minor accident or because the dry cleaners lost a pair of pants.
- The accretion of law, Howard argues, has also paralyzed democracy. Lawmakers add thousands of pages of law every year but rarely take any away. Law has grown, like sediment in the harbor, until it is difficult for government officials to act sensibly, or balance the budget.
The essential paradox in Howard’s philosophy is that authority is essential for freedom. Only when the judge has authority to dismiss an unreasonable claim will people in society feel free in daily interaction to act on their reasonable judgment. Only when the official can use his common sense will government act sensibly, and be able to adapt to practical problems that constantly arise. Only when the teacher has authority to respond immediately to disorder can we build a culture of respect and order in America’s schools. The fear of abuse of authority has driven America to a hyper-legalistic society, which Howard argues causes constant failure and unfairness. Far better to have clear lines of accountability up a hierarchy—to appeal the judge’s unreasonable ruling, or fire the abusive official, than to prescribe in advance their decisions. By putting legal shackles on those with responsibility, Howard argues, we unintentionally put shackles on ourselves.
Awards
Howard has received numerous awards and honors for his legal reform and civic work, including the Presidential Citation from the American Medical Association (2005) and the Chamber Music Society of Lincoln Center Award for Civic Leadership (2007). In 1987, the Village Voice named him “one of New York’s heroes” for his successful leadership against oversized development projects. Howard has also been asked to deliver endowed lectures, such as the 2008 Lewis Powell Memorial lecture at Washington and Lee University.Personal life
Howard and his wife Alexandra Cushing Howard live in Manhattan. They have four children.External links
- Common Good official website
- PhilipKHoward.com personal website
- Philip K. Howard’s correspondent page on TheAtlantic.com
- NewTalk official website
- Shall We Get Rid of the Lawyers? Anthony LewisAnthony LewisAnthony Lewis is a prominent liberal intellectual, writing for The New York Times op-ed page and The New York Review of Books, among other publications. He was previously a columnist for the Times . Before that he was London bureau chief , Washington, D.C...
' review of Life Without Lawyers in The New York Review of BooksThe New York Review of BooksThe New York Review of Books is a fortnightly magazine with articles on literature, culture and current affairs. Published in New York City, it takes as its point of departure that the discussion of important books is itself an indispensable literary activity... - Tort Retort Dirk Olin's review of Life Without Lawyers in Portfolio.com
- Too Much Law Guarantees Unfairness Stuart Taylor's review of Life Without Lawyers in National JournalNational JournalNational Journal is a nonpartisan American weekly magazine that reports on the current political environment and emerging political and policy trends. National Journal was first published in 1969. Times Mirror owned the magazine from 1986 to 1997, when it was purchased by David G. Bradley...
- Life Without Lawyers review in TIMETimeTime is a part of the measuring system used to sequence events, to compare the durations of events and the intervals between them, and to quantify rates of change such as the motions of objects....
- Video: Four Ways to Fix a Broken Legal System (TED Conference Presentation - Filmed Feb. 2010)
- Philip K. Howard’s interview on The Daily Show with Jon Stewart (May 2, 2011)