Something’s amiss when a girl in kindergarten, all of 40 pounds, is led away in handcuffs by police.
Philip Howard on the legal shackles that keep us from doing what's right and what makes common sense.
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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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.