The Collapse of the Common Good : How America's Lawsuit Culture Undermines Our Freedom
In pursuit of fairness at any cost, we have created a society paralyzed by legal fear: Doctors are paranoid and principals powerless. Little league coaches, scared of liability, stop volunteering. Schools and hospitals start to crumble. The common good fades, replaced by a cacophony of people claiming their "individual rights."
By turns funny and infuriating, this startling book dissects the dogmas of fairness that allow self-interested individuals to bully the rest of society. Philip K. Howard explains how, trying to honor individual rights, we removed the authority needed to maintain a free society. Teachers don't even have authority to maintain order in the classroom. With no one in charge, the safe course is to avoid any possible risk. Seesaws and diving boards are removed. Ridiculous warning labels litter the American landscape: "Caution: Contents Are Hot."
Striving to protect "individual rights," we ended up losing much of our freedom. When almost any decision that someone disagrees with is a possible lawsuit, no one knows where he stands. A huge monument to the unknown plaintiff looms high above America, casting a dark shadow across our daily choices. Today, in the land of free speech, you'd have to be a fool to say what you really think.
This provocative book not only attacks the sacred cows of political correctness, but takes a breathtakingly bold stand on how to reinvigorate our common good. Only by restoring personal authority can schools begin to work again. Only by judges and legislatures taking back the authority to decide who can sue for what can doctors feel comfortable using their best judgment and American be liberated to say and do what they know is right. Lucid, honest, and hard hitting, The Collapse of the Common Good shows how Americans can bring back freedom and common sense to a society disabled by lawyers and legal fear.
Howard offers a powerful though myopic look at our litigious society. When the common interest is undermined by the fear of being sued, as in America today, Howard claims, we have a social dysfunction rooted in the embrace of individual rights. Understanding justice as the right to champion individual interests and judicial fairness as neutrality between claimants provides no standard for what is good or even reasonable: "Justice today is purposeless" and has become "a kind of sporting contest." Instead of protecting society, law has become a vehicle for the pursuit of individual entitlement, while judges shy away from making value judgments. What's missing, says Howard, is authority, a recognizable source of values and leadership that asserts a hierarchy of goods in place of the undifferentiated arena of individual rights. Far from threatening individual freedom and democracy, Howard argues, authority is indispensable if we want to overcome the "structural flaw" of individual rights, with its unintentional transfer of "power for common decisions to self-interested individuals." While this argument is sensible and persuasive as far as it goes, it suffers from an oddly truncated view of the world. It's as if society consists only of individuals and government, with interests limited to individuals and the public as a whole, without corporations, interest groups and other organizations anywhere in sight. With the exception of teacher's unions, Howard strips his analysis of much of the sources of power and interest in American society, leaving his otherwise thoughtful efforts seriously incomplete. (Apr.) Forecast: Howard's last book, The Death of Common Sense, earned him a reputation as a cultural pundit, so his 10-city tour should garner him media attention if not respectable sales.
Copyright 2001 Cahners Business Information, Inc.
-- PUBLISHERS WEEKLY.
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January 28, 2002
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Excerpt from The Collapse of the Common Good by Philip K. Howard
The Lost Art of Drawing the Line !
The double slide in Oologah, Oklahoma, donated to the town park by the Kiwanis Club, was a local landmark. For fifty years this slide, looking like two legs of a spider, had provided fun for the children of Oologah. In 1995, however, a child suffered minor injuries while playing unattended on the slide, and the parents made a claim against the town. "I knew it was going then," said Judy Ashwood, fifty-three, who herself had played on the slide as a child. "It's hard for me to think that people who live here would actually sue the city if their child fell off the slide." But the town board decided it had no choice, notwithstanding a citizen petition asking that the slide remain in the park. It auctioned off the slide to a resident of a nearby town, getting $326.50, and the Oologah park slide was carted away.
All across America, playgrounds are being closed or stripped of standard equipment. In 1997, Bristol, Connecticut, removed all of the seesaws and merry-go-rounds from its playgrounds. When told of the decision, the face of thirteen-year-old Jennifer Bartucca fell with disappointment. "Every time I come here, I ask a friend to go on the seesaws. It is one of my favorite things to do at the park," said Jennifer: "I love merry-go-rounds. My father would push me on them when I was a little kid." Nicole LaPierre, sixteen, was equally disappointed. "If you play right, you're not going to get hurt."
Being safe has come a long way since Ralph Nader pointed out the absence of safety guidelines for cars and other consumer products. Avoiding risk is now practically a religion. But it's not clear that the results are necessarily what most people want. Some towns, for example, have the resources to replace the playground equipment with new, safer alternatives, including transparent tubes to crawl through and a one-person seesaw that works on a spring. Can you wait? The new equipment is so boring, according to Lauri Macmillan Johnson, a professor of landscape architecture at the University of Arizona, that children make up dangerous games, like crashing into the equipment with their bicycles.
The headlong pursuit of safety is killing off the simple pleasures of life. Why take a risk on an activity that's not absolutely necessary? The town of Park City, Utah, had a proposal to make bicycles available for free to tourists and others, both to alleviate the traffic and to make the town more attractive. Most people old enough to ride a bicycle are aware of the hazards. But accidents happen, and after concerns were raised about the possibility of a horrible accident, the plan was stopped. Better safe than sorry. Larck Lake, in West Virginia, had been open to fishermen and picnickers since 1993. But the owners got scared because teenagers coming up to a party there often decided to go swimming. "We felt that, sooner or later, there would be an accident," said Fred Stottlemyer, an official with the company that owns the lake, "so we decided to close the lake to recreational use." Bob Petryszak, who bought a house nearby because of the lake, was disappointed. "This is a great place to fish. The recreation it provides is a great asset to the area. There should be a way to keep it open."
Fun is optional, of course. The prophets of safety certainly practice a gloomy earnestness. But some activities that we've cut out are pretty important. Psychologists tell us, for example, that children need affection. Even before there were psychologists, most people, and animals as well, showed affection to their young. But in America, hugging or, indeed, even a pat on the back is now considered so dangerous that teachers can't do it. "Our policy is basically don't hug children," said Lynn Maher, speaking for the New Jersey chapter of the National Education Association (NEA). The guidelines of Pennsylvania's NEA chapter urge teachers to do no more than "briefly touch" a child's arm or shoulder. Michigan passed a law that forbade teachers to touch students for any reason. We're well on our way to a society where, as Ann Welch, a special-education teacher in Virginia, put it, "we tell children that karate is okay and hugs aren't."
Being safe, maybe extra-safe, is what we say is happening. But nobody really believes that. What's going on has little to do with risk to other people. It's mainly about avoiding legal risk for the person conducting the activity. "Ultimately, we came to the conclusion we were exposing ourselves to too much liability" by allowing people to keep using Larck Lake, said Mr. Stottlemyer. Charles Montgomery, who bought the double slide from the town of Oologah and set it up for his children in the backyard, put his finger on the problem. "It's a shame," Mr. Montgomery said. "I just see a kind of dying part of most people's childhood. It's going away because of society and lawyers."