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Philip Howard Quoted in San Diego Union-Tribune Series on the State of Fear in America "America’s Dangerous Aversion to Risk," "Compensation Culture's High Cost," "Perception Is Nine-tenths of the Law," and "Separating Good Risk and Bad Risk"
Richard Louv
The San Diego Union-Tribune, December 2005 In the first in his series on the state of fear in America, San Diego Union-Tribune columnist Richard Louv discusses our society’s growing aversion to risk. Fear – and the fear of lawsuits, in particular – Louv writes, “is changing our lives.” “We worry that the slightest slip in judgment, or even a random act of kindness, can invite a lawsuit from a stranger or a neighbor – even from someone we consider a friend.” This “fear flu,” as he describes it, has led to the end of school field trips and sledding and swimming in certain public spaces. Louv quotes Common Good Chair Philip K. Howard to further illustrate the societal symptoms of legal fear: “Volunteerism is chilled. … Because of legal threats, and fear of possible claims, common institutions such as hospitals and schools are increasingly difficult to manage.” In the end, Louv notes, “aversion to risk poses its own risks,” as evidenced by the growing rate of obesity in children. “A generation is coming to age with an atrophied sense of personal freedom and expanded waistline. In the long term, delayed health problems due to childhood obesity will probably trump the short-term risk of running on the playground.”
In the second installment, Louv comments on our “compensation culture,” where we are beginning to believe that “[e]veryone of life’s bumps deserves just compensation.” Referencing a recent case, where a woman was awarded more than $45,000 for the death of her cat, at the teeth of her neighbor’s dog, Louv writes, “[W]e have moved beyond the citizenship of rights, to the citizenship of compensation – to a legal system gone to the dogs and cats. … In the compensation culture, issues that should be settled by personal ethics are now sent to the courts.” Under this mentality, “the richness of life in free society atrophies.” What’s missing, he asserts, is a societal way to address this question: “When is the risk to one person outweighed by the good that comes to a greater number of people by allowing that risk?”
In his third piece, Louv examines whether America’s fear of lawsuits is supported by empirical evidence. “Depending on the study,” he writes, “the number of personal lawsuits is falling, holding its own or rising after a brief hiatus.” The number of threatened lawsuits, he rightly notes, though, are unquantifiable, and “may have more impact on public behavior than judges and juries.” Citing the recent actions of the Connecticut branch of Odyssey of the Mind as support, Louv argues that, “[w]hen it comes to behavioral change, perception is nine-tenths of the law.” The volunteer program, which teaches children problem-solving techniques, recently decided to buy insurance to protect its directors and officers. Of the decision to buy insurance, the Connecticut branch’s vice president relates, "‘We can ill afford not to, on the slim chance someone will sue the board of wonderful people who just want to make this program available to kids.’”
In the fourth and final article in the series, Louv discusses Britain’s touch of the “fear flu,” quoting Prime Minister Blair’s recent call for a clarification of “’existing common law on negligence to make clear that there is no liability in negligence for untoward incidents that could not be avoided by taking reasonable care or exercising reasonable skill.’” This clarification, Blair hopes, will “’reduce risk-averse behavior by providing reassurance to those who may be concerned about possible litigation, such as volunteers, teachers and local authorities.’” Louv also discusses Common Good’s efforts to address an American understanding of acceptable, or even “good,” risk. The traditional notion of tort reform, he relates, quoting Common Good Chair Philip K. Howard, “lacks our guiding principle: a focus on society as a whole.” Rather, what the United States needs, according to Common Good, and as Prime Minister Blair has called for in Britain, are societal “standards on who can sue for what.” Louv continues: “[T]he hardest task will be to create a more predictable process, one that balances the individual case with the public need for acceptable risk – that more clearly sets the parameters of acceptable risk, in the public mind.”
Click to read the first column: "America’s Dangerous Aversion to Risk."
Click to read the second column: "Compensation Culture's High Cost."
Click to read the third column: "Perception Is Nine-tenths of the Law."
Click to read the fourth column: "Separating Good Risk and Bad Risk."
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