Society: News and Commentary: SocietyWatch

Law is undermining our common institutions and our freedom to use common sense. Common Good's Society Watch is a collection of recent news and commentary reflecting on this trend.

**If an article is publicly available online, a link to it is provided following the article summary. If no link is provided, please visit the primary source’s archives to access the article. 

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All Most Recent News

Gov't Studies Health Risks of Playground Surface
Rita Beamish, Associated Press, June 4, 2009

The Environmental Protection Agency is reconsidering its endorsement of using ground-up tire surfacing for playgrounds, pending the results of an Agency study into recycled rubber’s potential health effects.  A reversal of the EPA’s recommendation would be the latest example of the ever-changing safety guidance given to recreation providers.  For example, as the Associated Press reports, the National Recreation and Park Association (NRPA) recommended that the White House use such tire surfacing under the Obama daughters’ recently installed play set.  An NRPA official told the AP that the Association “relies on the industry’s safety assurances and recommendations by the Consumer Product Safety Commission for cushioning the impact of falls.”  » article

Playground Injury Case Heard in High Court
Bill Lambdin, WNYT (Albany, NY), June 4, 2009

New York’s highest court was recently asked to decide whether the family of a girl who broke her leg and collarbone in 2000 can proceed with their nine-year-old lawsuit against the Gloversville School District for “not installing the proper shock-absorbing surface around a playground slide.”  The girl, who was ten at the time, suffered her injuries after her older sister “gave her a push from the top of the slide” and she fell off.  A trial court ruled that the case should go to trial, but that decision was later reversed on appeal.  Albany’s WNYT reports that the only thing remaining in the playground in which the incident took place is the frame of swing set.  » article

Individual Court Cases

Bumbling Good Samaritan Can Be Sued
Bob Egelko, San Francisco Chronicle, December 19, 2008

In a 4-3 decision, the California Supreme Court recently ruled that the state’s “shield against liability for emergency help applies only to people trying to provide medical help,” thereby making those who attempt other, non-medial rescue attempts vulnerable to lawsuits.  The decision stems from a Los Angeles woman’s 2004 “suit against a friend who pulled her out of a wrecked car and, in the process, allegedly caused injuries that left her permanently paralyzed.”  While the court majority argued that the 1980 law that the defendant relied upon to dismiss the case “was intended only to encourage people to learn first aid and use it in emergencies,” the three-judge minority argued that the court’s “ruling would discourage people from trying to save lives.”  And in a recent editorial, the New York Times agrees.  The paper writes: “The implications of the ruling are disturbing.  When people see an accident, the law should not discourage them from offering the best help they can.  Now, however, Californians will have reason to hesitate.  If they offer nonmedical help – like pulling someone out of a burning house, or rescuing a drowning person – they may be putting their life savings at risk.”  » article  » editorial  » court’s opinion

Injury Waivers Challenged
Steve Pardo, Detroit News, October 21, 2008

The Michigan Court of Appeals has ruled that injury waivers “signed by parents agreeing to hold an organization blameless if their child gets injured” don’t necessarily protect organizations from liability.  “The ruling,” the Detroit News reports, “may be especially profound for smaller organizations, which could have to rethink insurance policies to ensure instructors, coaches and referees are covered.”  Greg Kish, a youth recreation association board member agrees, arguing that it “is a ‘double-edged sword’ as leagues grapple with costs versus liability issues.”  “‘Our job as an organization is to try to keep the cost of sports accessible for our kids,’” he says.  ‘“We don't want to turn anybody away ….’”

Eat Movie Popcorn at Your Own Risk of Unpopped Kernels, Judge Says
Noeleen G. Walder, Law.com, September 30, 2008

Arguing that the presence of unpopped kernels in a bag of movie house popcorn should be “reasonably anticipated,” Manhattan Civil Court Judge Matthew Cooper recently ruled against a plaintiff who sought to recapture the cost of dental work after fracturing his tooth on an undercooked kernel at his local theater.  The judge elaborated: "Until such time as the same bio-engineers who brought us seedless watermelon are able to develop a new strain of popping corn where every kernel is guaranteed to pop, we will just have to accept partially popped popcorn as part and parcel of the popcorn popping process." » article  » Judge Cooper’s opinion

$54 Million 'Pants' Lawsuit Headed Back to Court
ABC News, September 10, 2008

More than a year after Roy Pearson's absurd lawsuit against the Chungs over a missing pair of pants was rejected, Pearson has persuaded an appellate panel to review the case. "We are hoping that we are victorious in appeal," said the attorney for the Chungs, "but the important thing to take away is that no one wins, everyone loses in a case like this." » article

Common Sense on Punitive Damages
L. Gordon Crovitz, Wall Street Journal, June 30, 2008

“We should cheer when the Supreme Court issues clear, transparent and common-sense rules,” writes L. Gordon Crovitz for the Wall Street Journal. These rules give “judges jurors and citizens [a] new understanding about how the legal system should work.” Crovitz is referring to the recent Supreme Court decision reducing the amount of punitive damages in the Exxon Valdez suit from $2.5 billion to $500 million. Crovitz hails the court’s use of actual numbers to determine the appropriate ratio of punitive-to-compensatory damages: 1 to 1. Crovitz opines that for years, out-of-control jury awards and frivolous litigation has rendered the legal system in America “less a system than a series of random results.” Agreeing with Justice Souter’s identification of the “stark unpredictability of punitive awards,” Crovitz observes that there has been no consistent rubric for determining punitive damages. He, however, predicts that it will require further litigation to determine if this 1:1 rule becomes the bright-line for determining the appropriateness of punitive damages in the future.

International

Dinner Lady Loses Compensation Bid Against Schoolboy Who Ran into Her
Caroline Gammell, Telegraph (UK), April 3, 2009

The United Kingdom’s Court of Appeal recently affirmed the dismissal of a lawsuit brought by a British school employee against a 13-year-old boy who had crashed into her while playing tag, causing bodily injury.  Agreeing with the lower court’s decision, Lord Justice Waller stated that, in playing tag, the boy “and his friend were not behaving ‘outside the norm.’”  "I, of course, feel sympathy for [the plaintiff],” the judge explained, “but it seems to me that the [lower court] judge's assessment of the case was clearly right ….  Thirteen-year-old boys will be 13-year-old boys who will play tag.  They will run backwards and they will taunt each other.  If that is what they are doing and they are not breaking any rules they should not be held liable in negligence."  The boy’s lawyer had argued to the court that the “appeal raises a stark and important question” as to whether “the law ha[s] any part to play in the regulation of simple, time-honoured, playground games between young children.”  He followed: "We contend that it does not and that, to conclude otherwise, would place an unwarranted and undesirable restriction on the normal, healthy development of a child."  An Irish judge expressed similar sentiments a week earlier regarding a lawsuit brought against a school for failing to provide adequate supervision on their playground.  A four-year-old boy had been injured there in 2006 after being pushed by another boy.  “Children push each other.  Children fall,” argued Judge Jacqueline Linnane in dismissing the injured boy’s suit.  “This was a simple if unfortunate accident and I cannot find any liability on the part of the school ….”  » article on UK case  » article on Irish case

Are We Too Afraid of Touch?
Julia Neuberger, Sunday Times (UK), December 7, 2008

Julia Neuberger writes in the United Kingdom’s Sunday Times that society’s constant “advice to be watchful” is making the Kingdom’s citizens afraid.  “It makes us shrink into ourselves,” she writes.  “We become unkind, unconcerned for others, and our children become terrified of the outside world.”  Of particular concern to Neuberger is the growing “aversion to innocent physical contact,” evidenced by hospital employees being “told not to put an arm round patients to comfort them lest it be viewed as assault” and the recent case of a bricklayer who chose not to intervene when he saw a wayward two-year-old walking down the road for fear that “people would think he was trying to abduct her.”  The girl, who had broken free from her nursery school, later drowned.  Neuberger argues that the UK’s collective fear stems from three sources: “fear of being sued,” “fear of what others might think,” and fear of children being injured, killed, or abducted.  Yet, whether these concerns are real or imagined, she warns of the dangers of being consumed by them.  “If we aren’t careful the next generation will consist entirely of wimps.  They will go off on adventure holidays abroad, but they will not walk down the street or get on the Tube alone for fear of attackers.  The net result will be not only a lack of life skills, but overwhelming fear: of predators, of accidents, of life itself. …  And we will have created a whole generation of unhappy people.  We need to be sensible, not risk-averse; we need to look out to see where we can help others.  And, sometimes, we may even need to touch them.”  » article

Where Did Childhood in Britain Go Wrong?
Sue Palmer, Telegraph (UK), October 3, 2008

Writing for the Telegraph, British author and former teacher Sue Palmer argues: “Something is mightily wrong with childhood in Britain, and after 30 years working with children and teachers … I reckon our risk aversion – not just in schools but in every area of life – is a major part of the problem.”  She relates that when asked by a recent survey “what age children should be allowed out alone,” many parents answered 14 – and that even those who would like to give children more freedom are prevented from doing so by public opinion.  “Just as health and safety regulations have stifled the excitement of learning at school,” Palmer writes, “preoccupation with public safety, endless regulation and adults’ desire for tidy, orderly communities have helped stifle children’s leisure time.”  As does Common Good, she argues that parents’ desire to shield their children from risk can pose risks itself.  Palmer explains: “All the most essential lessons of life – the personal, social and emotional lessons that make us functioning human beings – are caught rather than taught.  Social competence, self-confidence and resilience, commonsense understanding of the world – not to mention physical health and fitness – all come from being out there in the real world.  If children don’t get these vital first-hand experiences, we can’t be surprised that many end up as fragile or anti-social teenagers, either risk-averse themselves, or ready to take excessive risks, because they’re unable to make sensible judgments.” » article

Primary School Bans Cartwheels, Handstands
ABC News, August 26, 2008

A primary school in North Queensland, Australia has banned cartwheels and all other forms of “gymnastics activities” during recess due to safety concerns. A grandmother of a child who was recently reprimanded for such behavior laments, "Sadly I think this is probably linked with the current society where litigation is rife and I feel that schools are probably trying to avoid a child being hurt and an irresponsible mother then trying to sue them for it.” Education administrator Vicki Baylis denies that the decision had to do with anything but student safety. "The issue around the gymnastics is around the safety of the kids and it was not motivated by any concept of litigation.” » article

Childminder Shortage Looms as Bureaucracy Forces Thousands to Quit
John Bingham, Telegraph (UK), August 20, 2008

In England, excessive red tape is wreaking havoc on preschool education and child care providers, or "childminders." Education watchdog Ofsted, an agency in the British government that regulates schools, reports that almost a tenth of registered childminders have decided to quit the profession, with many blaming "increased regulation and paperwork." Despite this problem, the red tape is only increasing: starting next month, nurseries and other providers of child care will have to comply with new government requirements for children under the age of five. Instead of improving the situation, the bureaucracy and red tape installed by the government is decreasing the reach and efficiency of the nation's preschool education. » article

UK: Toy Gun Used on Stage Must Be Registered
BBC News, January 18, 2008

A theater group in the United Kingdom has been forced to register toy weapons -- including "a toy gun which produces a flag saying 'Bang'" and plastic swords -- with the police in order to meet U.K. Health and Safety guidelines, according to BBC News. The use of these toy weapons as stage props, in this case in a pantomime of ‘Robinson Crusoe,’ are regulated by the Health and Safety Executive (HSE).  A HSE spokesman argued such policies exist to ensure that the “risks are sensibly managed.” The producers of the show, on the other hand, did not see risk in the situation: “It gets a bit farcical when you are dealing with plastic swords.” » article

UK Prime Minister Vows to Fight Nanny State Culture
Steve Doughty, Daily Mail (UK), January 16, 2008

In the UK, new Prime Minister Gordon Brown has promised to “fight the nanny state culture that removes hanging baskets from the streets and stops children joining the Scouts.” Brown called for new thinking in Parliament to “prevent the development of useless laws and rules that do no good in the name of health and safety.” Brown launched the Risk and Regulation Advisory Council, which seeks to examine laws “governing obesity, company management, and ‘systemic risk aversion.’” Brown’s new initiative stems from a 2006 watchdog report which found that the “state’s attitude to allowing people to take risks was ‘defensive and disproportionate’ and produced ‘regulatory overkill.’” Common Good supports Mr. Brown’s efforts to bring risk aversion and overregulation into the public policy spotlight. » article

Miscellaneous

Have Americans Gone Nuts Over Nut Allergies?
Tiffany Sharples, Time, January 4, 2009

In the latest issue of Time, Tiffany Sharples asks whether all the precautions Americans take to safeguard nut-allergic children from nuts “seem a little … nuts.”  Recently in Massachusetts, she relates, a “school district evacuated a school bus full of 10-year-olds after a stray peanut was found on the bus floor.”  She also details the same 2006 story written about by Common Good Chair Philip K. Howard in the Wall Street Journal and in his forthcoming book, Life Without Lawyers, where three 60-foot hickory trees were removed from a Connecticut neighborhood due to “nut over-precaution.”  “As a society,” Harvard professor Dr. Nicholas Christakis tells Sharples, “our priorities have been seriously skewed, and it's largely a result of fear.”  » article

Crab-Apple Clash, Birdhouse Ban Pushed Seniors to Take a Stand
Philip Shishkin, Wall Street Journal, December 2, 2008

“The imminent chopping down of a crab-apple tree, to make way for a large trash bin, was the last straw,” writes Philip Shishkin of the Wall Street Journal in a report on efforts by elderly tenants of a Massachusetts subsidized apartment complex to redress “what they saw as excessive safety precautions” taken by the local housing agency.  When two of the tenants tethered themselves to the tree – which was slated for removal because another resident had fallen on uneven pavement near the trash bin’s original location – they were served with eviction notices.  Shishkin writes: “The eviction notices brought to a head more than a year of friction between the housing agency and tenants of Shrewsbury's Francis Gardens apartments, in a battle over cluttered patios, fire codes, an allegedly dangerous garbage bin, and who decides what's best for old people.”  » article

Employment Attorneys' Halloween Advice
Tresa Baldas, National Law Journal, October 31, 2008

It’s Halloween, and as Tresa Baldas of the National Law Journal reports, “labor and employment attorneys are warning employers that the annual holiday could get scary – in a legal way – if costumes, or a work party, get out of hand.”  On the costumes front, Chicago attorney Steve Miller tells Baldas that ones of a political or sexy nature – or ones that “could offend someone’s religious beliefs” – are the most likely to generate a lawsuit, if not simply “unwanted tension.”  And St. Louis attorney Dennis Donnelly adds the issue of personal injury to the mix.  “‘The great big pumpkin costume might look great at the party,’” he tells Baldas, “‘but if they trip on their way out the door, it doesn’t look so good.’”  Baldas advises employers and employees that when it comes to Halloween festivities they should “‘be circumspect in what they do’” and not allow “‘the holiday spirit’” to “‘overtake[ ] good judgment.’”  “‘If there’s a breakdown in decorum, and Halloween festivities turn into the proverbial Christmas party,’” he relates, “‘then all sorts of mischief can happen.’” » article

Neighbor Says Golf Is a Sport Too Close
Corey Kilgannon, New York Times, October 15, 2008

A New York State Supreme Court judge has issued a temporary restraining order against the famed Winged Foot Golf Club in Westchester, preventing play on its East Course’s sixth hole.  The order – which the New York Times writes makes the East Course “the most famous 17-hole championship golf course in the country” – was sought by a restaurateur unhappy with the number of errant golf balls landing on his property, which borders the hole.  The man has also filed suit against the club.  One dissenting club member argues: “‘If you buy a house on a golf course, you have to assume there may be a couple of errant shots that are going to land in your yard.  It’s part of the charm of living on one of the most famous golf courses in the world’ ….” » article

Rotary Suspends Youth Exchange Program
Ed Merriman, Baker City Herald (OR), September 16, 2008

The Baker City, Oregon Rotary Club, an affiliate of the local school district, suspended its youth exchange program. To blame is the Child Protection Act, which establishes onerous guidelines for screening child care providers. Anthony Bailey, an active Rotary member comments, "there've been a lot of parameters placed on [the exchange program] that make it hard for us as volunteers to manage." One such troublesome requirement is a background check for all host family members over 18 that may transport, feed, or spend time with an exchange student. Host family members would also have to complete training about "how to safely host and interact with exchange youths." Understandably, the Rotary’s board has decided there’s not enough time to consider the implications of the Act. As the club's president, Kari Waldhaus, points out, "What would happen if there was an accusation? Even if it turns out to be false, there could be some legal bills for the host families."

Judge Calls Restaurateur’s Umbrella Lawsuit Frivolous
John Eligon, New York Times, September 13, 2008

We commend Justice Joan A. Madden of the State Supreme Court in Manhattan for wisely dismissing a frivolous lawsuit stemming from a broken umbrella and taking the unusual step of fining the plaintiff's attorney for filing a frivolous claim. Nello Balan, a New York restaurateur, sued Le Call, a model, and Nathaniel Rothschild after an umbrella Mr. Balan lent Le Call was returned to him broken. Mr. Balan initially sued for $1 million, claiming emotional damages, but the complaint was eventually amended to seek $30,000. In dismissing the suit, Justice Madden called it a "waste of judicial resources" and concluded that there was "no factual or legal basis for seeking $30,000 in damages for replacing an umbrella" valued at $5,000.  » article

Related: It's Raining Lawsuits

Red Tape Deterring Volunteers
BBC News, January 28, 2008

According to Baroness Julia Neuberger, chairwoman of the UK’s Commission on the Future of Volunteering, “too many people are being put off volunteering. Many people come forward to offer their time and skills, but red tape and unnecessary bureaucracy get in the way.” She was particularly concerned with the use of criminal background checks on potential volunteers, a step which is only necessary for those working with children or vulnerable adults. She notes that, if the UK is to remove barriers to volunteering, ”it is time to “re-think the obsession with any risks that might be involved.”

Lawmakers Consider Making Food Donations Easier
Jeremiah Jacobsen, WINK (Fort Myers, FL), January 21, 2008

“Fear could be causing good food to go to waste” in Florida because restaurants fear “a possible lawsuit if the donation goes bad.” Fort Myers, FL area restaurants used to donate leftover food, but according to a local bakery owner, “all of this liability issue came about, so we stopped.… You want to give and you want to do the right thing, but then the other part of your brain says, wait a minute…I’ve got to watch my own.” State legislators are considering a bill that will allow restaurants “to donate leftover perishable items to food banks and shelters for free and without having to worry about liability” in order to support state shelters and food banks. » article

Unintended Consequences
Stephen J. Dubner and Steven D. Levitt, New York Times, January 20, 2008

In their New York Times blog, Freakonomics authors Stephen Dubner and Steven Levitt explore how the Americans With Disabilities Act (A.D.A.), along with two other well-meaning laws, can produce unintended and unwanted consequences.  In showing that the A.D.A. might “hurt the very patients it is intended to help,” they recount the story of Andrew Brooks, a California orthopedic surgeon, who was required by the A.D.A. to foot the $240-per-session bill for a patient’s sign language interpreter or risk a discrimination lawsuit. Dr. Brooks found that his colleagues would be reluctant to treat patients with special needs because they feared the possibility of A.D.A. lawsuits. He worried that: “This kind of patient will end up getting passed on, getting the runaround, not understanding why she’s not getting good care.” Dubner and Levitt also cite a study which found that, “when the A.D.A. was enacted in 1992, it led to a sharp drop in the employment of disabled workers.… Employers, concerned that they wouldn’t be able to discipline or fire disabled workers who happened to be incompetent, apparently avoiding hiring them in the first place.”  These cases are further evidence that when people fear or distrust the civil justice system, they often act irrationally, defensively, and against the best interests of society.

We Can’t Regulate Risk out of Our Lives
Taylor Armerding, Eagle-Tribune (North Andover, MA), January 6, 2008

Taylor Armerding of the North Andover, MA Eagle-Tribune has proposed a New Year’s Resolution for the country: “Could we all just lighten up in 2008?”  In Salem, MA, a senior citizens' bake sale was shut down because the food wasn’t prepared in a kitchen with a Board of Health permit. This, like the closure of “some of the best sledding hills in the [Andover] region,” is yet another example of a risk-averse society that seems unwilling to “take responsibility ourselves for the risks we choose to take.” Armerding worries that “our litigious nature will weave a protective cocoon for us…but in exchange for that, we won’t know what it is to really live.” Noting how excitement and risk often go hand-in-hand, he asks, rhetorically: “Do we really think we can sue the risks out of life? Do we really want to?” article »

Parks, Playgrounds, and Recreational Activities

Gov't Studies Health Risks of Playground Surface
Rita Beamish, Associated Press, June 4, 2009

The Environmental Protection Agency is reconsidering its endorsement of using ground-up tire surfacing for playgrounds, pending the results of an Agency study into recycled rubber’s potential health effects.  A reversal of the EPA’s recommendation would be the latest example of the ever-changing safety guidance given to recreation providers.  For example, as the Associated Press reports, the National Recreation and Park Association (NRPA) recommended that the White House use such tire surfacing under the Obama daughters’ recently installed play set.  An NRPA official told the AP that the Association “relies on the industry’s safety assurances and recommendations by the Consumer Product Safety Commission for cushioning the impact of falls.”  » article

Playground Injury Case Heard in High Court
Bill Lambdin, WNYT (Albany, NY), June 4, 2009

New York’s highest court was recently asked to decide whether the family of a girl who broke her leg and collarbone in 2000 can proceed with their nine-year-old lawsuit against the Gloversville School District for “not installing the proper shock-absorbing surface around a playground slide.”  The girl, who was ten at the time, suffered her injuries after her older sister “gave her a push from the top of the slide” and she fell off.  A trial court ruled that the case should go to trial, but that decision was later reversed on appeal.  Albany’s WNYT reports that the only thing remaining in the playground in which the incident took place is the frame of swing set.  » article

Stop Worrying About Your Children!
Katharine Mieszkowski, Salon, May 4, 2009

Columnist and author Lenore Skenazy recently sat down with Salon to discuss her new book, Free Range Kids, and – echoing Common Good’s sentiments – how efforts “to fend off every possible risk [to children], however remote, holds its own unfortunate, unintended consequences.”  She tells the online magazine that parents’ and society’s repeated pronouncements to children – in news coverage, parenting magazines, and marketing efforts – that they “‘are in constant, utter peril, [when] the statistics actually don’t prove that,’” inhibits their growth as confident, productive individuals.  “You want kids to feel like the world isn’t so dangerous,” she explains.  “You want to teach them how to cross the street safely.  You want to teach them that you never go off with a stranger.  You teach them what to do in an emergency, and then you assume that generally emergencies don’t happen, but they’re prepared if they do.  Then, you let them go out.  The fun of childhood is not holding your mom’s hand.  The fun of childhood is when you don’t have to hold your mom’s hand, when you’ve done something that you can feel proud of.  To take all those possibilities away from our kids seems like saying: ‘I’m giving you the greatest gift of all, I’m giving you safety.  Oh, and by the way I’m taking away your childhood and any sense of self-confidence or pride.  I hope you don’t mind.’”  » article

Get Kids Outside
Educational Dealer, March 1, 2009

In addition to discussing its importance, the trade magazine Educational Dealer writes that opportunities for free play are diminishing – both in terms of recess and playgrounds – because of fear – “fear of injury, fear of lawsuits and fear of academic failure.”  The magazine quotes Dr. Joe Frost, a NewTalk participant, who relates that “‘[c]ompared to Europeans, Americans are very risk averse in regard to playgrounds.’”  In 1981, the magazine notes, the Consumer Product Safety Commission playground safety guideline was 13 pages long – but by 2006, it had grown to 81 pages.  Moreover, between 1993 and 2005, the American Society for Testing and Materials standards more than doubled.  “‘With each passing revision, inconsistencies have been built in,’ says Frost.  ‘Consumers and manufacturers have become increasingly frustrated, and lawyers have gained additional fuel for litigation.’”  The article mentions Common Good and Philip K. Howard’s Life Without Lawyers as two forces trying “to restor[e] rationality and common sense to law and lawsuits affecting children’s health, play and public schools.”

The 3 R’s? A Fourth Is Crucial, Too: Recess
Tara Parker-Pope, New York Times, February 23, 2009

Tara Parker-Pope of the New York Times returns to the issues of recess and free play, writing that “[t]he best way to improve children’s performance in the classroom may be to take them out of it.”  To support this argument, she cites the Pediatrics study that she had written about earlier, as well as recent research from Harvard that showed “that the more physical fitness tests children passed, the better they did on academic tests” and in the Journal of Attention Disorders that found that children who took walks outdoors – and in natural settings in particular – showed “improve[d] scores on tests of attention and concentration.”  Parker-Pope also quotes NewTalk participant Dr. Stuart Brown, who argues that “preserving playtime in schools” is “‘a major public health issue.’”  “‘Teachers feel like they’re under huge pressures to get academic excellence to the exclusion of having much fun in the classroom,’” he states.  “‘But playful learning leads to better academic success than the skills-and-drills approach.’”  » article

The Costs of Negligence
New York Times, January 15, 2009

“There has often been an appealing vein of common sense in New Hampshire,” reads a recent New York Times editorial, “and that is true of its regulations for people who venture outdoors.”  The state is earning the paper’s plaudits on account of its recent decision to lessen the standard of responsibility – from recklessness to negligence – by which it would seek reimbursement from the hikers, skiers, and the like it needs to rescue.  “There is something a little peculiar about the need for a law like this,” the paper continues.  “The New Hampshire Fish and Game Department is hoping not only to recoup some of its rescue costs, but also to warn hikers and skiers that their behavior in nature has consequences….  [M]ost Americans live lives that are incredibly distant from nature.  They often do not understand that venturing into the backcountry means entering a realm of purely personal responsibility. …  The backcountry is a world with rules of its own, enforced by nature itself.  If that means billing visitors for the costs of their negligence, we say, fine by us.”  » article

The Child Trap
Joan Acocella, New Yorker, November 17, 2008

In the latest issue of the New Yorker, Joan Acocella surveys recent literature and research on “[t]he rise of overparenting,” including the works of Common Good friends Hara Estroff Marano and Richard Arum.  Acocella addresses Common Good’s concerns regarding the decline of free play and the rise of risk-aversion in the article in relating Marano’s views on children’s brain development.  She writes: “As children explore their environment by themselves – making decisions, taking chances, coping with any attendant anxiety or frustration – their neurological equipment becomes increasingly sophisticated, Marano says. …  If, on the other hand, children are protected from such trial-and-error learning, their nervous systems ‘literally shrink.’” » article

Are Playground Safety Mats Too Hot to Handle?
Sewell Chan, New York Times, July 21, 2008

Regulations designed to make playgrounds safer may lead to other hazards, as Sewell Chan reports in the New York Times "City Room" Blog. Despite complying with the rigorous Consumer Product Safety Commission (CPSC) regulations, rubber safety mats covering the roughly 1,000 playgrounds in New York City have come under scrutiny for another potential hazard–reaching unsafe temperatures during hot weather. At least three lawsuits stemming from playground burns have been filed in the last year.  Adrian Benepe, Commission of New York City’s Department of Parks and Recreation, said the rubber mats were the best solution among those approved for use by the CPSC and noted that all parks contain signs warning children to wear shoes. Even so, advocates have called for replacing all of the rubber mats, which could cost as much as $100 million. » article

Build a Wiffle Ball Field and Lawyers Will Come
Peter Applebome, New York Times, July 10, 2008

In Riverside, CT, controversy has erupted over the use of town property by local teenagers. Over the course of three weeks this summer, about a dozen high school-age teenagers cleared a vacant town lot and established a makeshift Wiffle ball field. The New York Times has published a piece chronicling what it calls ‘Wifflegate.’ The story cuts across key issues: the value of play for the development of young people; the rights of nearby homeowners to a quiet neighborhood; neighborhood property values (the value of the lot alone is $1.25 million) and inevitable liability concerns. Many of the players can’t seem to understand what the big deal is: “‘They think we’re a cult,’ said Jeff Currivan, 17. ‘People think we should be at home playing Grand Theft Auto.’” The local newspaper, the Greenwich Time has written an editorial in support of the teenagers, and town selectman Lin Lavery is hoping for a reasonable resolution: “People can remember how much fun it was to go out in the woods in the summer, build a fort, do something fun and creative, so there’s something pretty cool in what these kids did, especially at a time kids grow up in such an incredibly structured and stressful environment…But we have a situation that’s escalated. Neighbors are upset that it’s too close to their property; building has been done on town property; there are issues of traffic and drainage. We’re hoping to come up with a compromise, but there are a lot of issues to address.” » article

No Time for Fun: Children and Parents in ‘Play Crisis’
John J. Edwards III, Wall Street Journal, May 12, 2008

In the Wall Street Journal’s work/life balance blog, “The Juggle,” John J. Edwards III picks up on Tufts psychology professor David Elkind’s article from Greater Good magazine declaring a “play crisis.” Elkind outlines the social and cognitive benefits of play – particularly “the unstructured, self-motivated, imaginative, independent kind” and “points to the elimination of recess at many schools in favor of more classroom instruction” as a major reason for this crisis. His proposed solutions include requiring the construction of playgrounds in new housing developments, moving away from “the general problem of test-driven curricula” in schools, and requiring that schools provide a daily half-hour of recess.  Elkind also suggests that schools’ fear of high liability insurance costs and “parents’ greater appetite for litigation” is “overblown”, and doesn’t justify removing recess and physical activity from children’s daily routines.

For Youngsters, Leaps and Boundaries
Kathryn Shattuck, New York Times, March 16, 2008

Kathryn Shattuck’s New York Times article examines the book Designing Modern Childhood, co-edited by City College architecture professor Marta Gutman, which examines children’s play areas around the world and the “adults who thought they knew best when it came to providing a child’s physical world.”  Describing an upper Manhattan playground that is conducive to free play, Professor Gutman notes that, “The intention is to fall...[y]ou don’t want to make the environment so safe that it’s not challenging.”  Ms. Shattuck contrasts this to the stifling trend that fear of liability often has on playground design, quipping ironically, “What? Get out the lawyer’s number.”  Later, Shattuck notes that, “Adventure playgrounds swept through Europe, particularly Scandinavia, and eventually reached the United States, though in smaller numbers and less successfully, because of liability issues.” » article

Lackluster Playgrounds
Robert Moran, Salem Gazette (MA), March 14, 2008

In his “Thinking About Salem” column, Robert Moran suggests that challenging playgrounds are necessary for teaching the children of Salem, MA – and, presumably, all children – to develop the skills that will be necessary as adults.  He refers to three reasons identified by the Children’s Institute for Learning and Development (CHILD) that “communities do not build challenging playgrounds: fear of litigation, stringent safety standards and perceptions playgrounds are dangerous.” Moran suggests that these concerns shouldn’t prevent the town from making playgrounds appeal to 8 to 12 year old “tweens” who are drawn to video games. As Moran points out, “Good design, maintenance, supervision and orientation can minimize the chance and severity of playground injury.” Perhaps more important than that, he argues that “injury and childhood are interwoven” and that risk exists in activities such as “baseball, skating and dancing…even isolation with a computer.”  » article

Taking Play Seriously
Robin Marantz Henig, New York Times Magazine, February 17, 2008

“[P]laying, though it might look silly and purposeless, warrants a place in every child’s day.” 

According to Robin Marantz Henig’s piece in the New York Times Magazine, there is a growing “consensus view [among scientists who study play] that play is something more than a way for restless kids to work off steam; more than a way for chubby kids to burn off calories.” If play were indeed nothing more than exercise and stress relief, concern over its shrinking role in children’s lives would be justified. But play, as Ms. Henig’s article examines in depth, is “more than a frivolous luxury...it is a central part of neurological growth and development — one important way that children build complex, skilled, responsive, socially adept and cognitively flexible brains.”

more »

Recess, Field Trips, and Other School Activities

Get Kids Outside
Educational Dealer, March 1, 2009

In addition to discussing its importance, the trade magazine Educational Dealer writes that opportunities for free play are diminishing – both in terms of recess and playgrounds – because of fear – “fear of injury, fear of lawsuits and fear of academic failure.”  The magazine quotes Dr. Joe Frost, a NewTalk participant, who relates that “‘[c]ompared to Europeans, Americans are very risk averse in regard to playgrounds.’”  In 1981, the magazine notes, the Consumer Product Safety Commission playground safety guideline was 13 pages long – but by 2006, it had grown to 81 pages.  Moreover, between 1993 and 2005, the American Society for Testing and Materials standards more than doubled.  “‘With each passing revision, inconsistencies have been built in,’ says Frost.  ‘Consumers and manufacturers have become increasingly frustrated, and lawyers have gained additional fuel for litigation.’”  The article mentions Common Good and Philip K. Howard’s Life Without Lawyers as two forces trying “to restor[e] rationality and common sense to law and lawsuits affecting children’s health, play and public schools.”

The 3 R’s? A Fourth Is Crucial, Too: Recess
Tara Parker-Pope, New York Times, February 23, 2009

Tara Parker-Pope of the New York Times returns to the issues of recess and free play, writing that “[t]he best way to improve children’s performance in the classroom may be to take them out of it.”  To support this argument, she cites the Pediatrics study that she had written about earlier, as well as recent research from Harvard that showed “that the more physical fitness tests children passed, the better they did on academic tests” and in the Journal of Attention Disorders that found that children who took walks outdoors – and in natural settings in particular – showed “improve[d] scores on tests of attention and concentration.”  Parker-Pope also quotes NewTalk participant Dr. Stuart Brown, who argues that “preserving playtime in schools” is “‘a major public health issue.’”  “‘Teachers feel like they’re under huge pressures to get academic excellence to the exclusion of having much fun in the classroom,’” he states.  “‘But playful learning leads to better academic success than the skills-and-drills approach.’”  » article

Recess and Physical Education Classes Makes for Better Students
January 28, 2009

Parents Fight for Diabetic Kids' Rights
Carolyn Starks, Chicago Tribune, December 8, 2008

Carolyn Starks of the Chicago Tribune reports that the over-bureaucratization of schools and their fear of lawsuits has now extended to diabetics and the treatment of their condition.  Emblematic of this trend is the story she relates of a suburban Chicago mother who had to drive every two hours to her son’s elementary school to test his blood sugar, as the school considered his blood-testing device’s lancet – “the smallest needle in the world” – a weapon and wouldn’t allow it on the bus.  Starks adds that liability fears have caused other districts to ban diabetics from extracurricular activities and sports teams absent the presence of a nurse or guardian.  » article

Children's Lack of Playtime Seen As Troubling Health, School Issue
Linda Jacobson, Education Week, December 3, 2008

In the latest issue of Education Week, Linda Jacobson reports on a recent meeting of early-childhood experts convened “to arrest what they see as the loss of free, unstructured playtime for children both in and out of school.”  Psychologist and author Michael Thompson addressed the event, telling the 900 attendees that “the rise of childhood obesity, anxiety, depression among children, and attention-deficit hyperactivity disorder” is attributable to children’s loss of play.  “‘We are doing wonderful things for kids,’” Thompson said, “‘but we are not leaving them alone enough.’”  » article (subscription required) » Associated Press article on the event  

Eleven Schools in Bronx Will Have New Play Spaces for September
Elise Kinger, New York Daily News, July 7, 2008

The non-profit group Out2Play will renovate playgrounds in 11 Bronx schools this summer as part of their initiative to improve the quality and number of playgrounds in New York City schools. According to report by Bronx Borough President Adolfo Carrión, his 42% of Bronx residents are obese, the highest obesity rate in the five boroughs. In its three years of operation, Out2Play has created 15 playgrounds throughout the city, including one at Public School 55. Luis Torres, President of PS 55 says that with the playground has come fewer fights and injuries, along with a sense of pride. "Because the students helped design the playground, they feel protective of it and watch out for vandals. I make sure to tell all the kids, 'This is your playground,’” said Torres to the Daily News. Out2Play’s founder and Director, Andrea Wenner, stresses the need for recess time spent in a stimulating environment. Without a playground, "they're not being physically active, they're getting into fights and not interacting in a constructive way." » article

Go and Play
Editorial, Buffalo News, June 4, 2008

A Buffalo News editorial argues that there needs to be an “official recognition that recess has both a human and an educational purpose,” lamenting that New York State “has no rule requiring recess” and that across the country “too many schools seem to have forsaken it.”  The piece shares the national Parent Teacher Association’s sense of “appropriate alarm” that a “combination of factors” including No Child Left Behind “has knocked recess out of as many as 40 percent of elementary schools nationwide.” The editorial notes that it is “realistic” to recognize that recess will improve kids’ performance in school, as “the attention span of children is limited…a dose of fresh air and a rise in heart rate is often just the ticket to keeping young minds sharp and receptive.” » article

Arizona State Senate Says Schools Must Provide Recess
Howard Fischer, Arizona Daily Star, April 28, 2008

Arizona’s state Senate passed a bill by a 17-10 vote that would mandate that schools provide a daily half-hour of recess for Arizona’s 1st through 6th graders.  According to its sponsor Mark Anderson (R-Mesa), “There are some districts that struggle with the concept of letting children be children.”  Anderson noted that some school districts work in a “full hour of physical education” and “still manage to teach kids how to read and do math.”  He added that he has “no sympathy for officials who say that would be trading test scores for tetherball.”  Although the bill passed the state Senate, it was later blocked by voice vote in the state House because of concerns that schools wouldn’t be able to opt out of a state mandate.  An Arizona Daily Star editorial argued, however, that “the bill wouldn't be necessary if many schools weren't getting rid of recess… If school districts have the option of opting out, we believe many of them will do just that. Kids will be no better off than they are today.”  A poll by the newspaper found that 82% of its readers supported the mandatory recess measure. 

The Need for Reform

A Plea to Stop the Legal Insanity
Lily-Hayes Kaufman, Forbes, April 30, 2009

In her review of Common Good Chair Philip K. Howard’s Life Without Lawyers, Lily-Hayes Kaufman – writing for Forbes – relates a personal anecdote where a café employee once told her that it was the café’s policy not to pour customers drinking water from their sink for fear that, “[i]f someone fell sick … they might sue.”  “What I encountered in the café is just one example of the extraordinary measures Americans take on a daily basis to defend themselves from the law, which in theory exists to protect the people,” Kaufman writes.  In Life Without Lawyers, she continues, Howard illustrates that modern law “‘has infected daily choices with a debilitating legal self-consciousness.’”  “People make choices that may be less beneficial to society,” Kaufman writes, “because they may be personally and legally safer.  Thus, Americans’ ability to responsibly run a society is being hampered by a fear of the law.”  “Howard,” she concludes, “aims to restore responsibility and reliability to the American legal system for the betterment of society.  He doesn't just critique the modern legal system in America, he also offers a framework for improvement. …  It is not literally a ‘life without lawyers’ that Howard wishes for America, but rather a life in which lawyers practice a reformed law that is rebalanced to focus on promoting growth and progress for the betterment of society.”  » article

Congress Piles Up New Laws Without Any Knowledge of Previous Ones
Philip K. Howard, San Francisco and Washington Examiner, April 23, 2009

“Congress is broken,” writes Common Good Chair Philip K. Howard in opinion piece appearing in both the San Francisco and Washington Examiner.  The institution, he explains, “lacks even the idea of making sense of the laws it has passed.  It keeps piling on new obligations without revising the old ones.”  Howard cites the 1931 Davis-Bacon Act and the 1933 farm bill as examples – two pieces of legislation that have outlived their original purpose, have become windfalls for special interests, and contribute to the hundreds of billions of dollars of federal waste.  What’s needed, he argues, is a spring cleaning of federal law: “All those layers of legal concrete need to be scraped away and replaced by streamlined laws that are actually designed to meet the needs of society in the 21st century.”  The problem is that, “unless the public rises up and forces it to do its job,” it’s hopeless that Congress will act.  Howard calls on America’s civic leaders to form a “Coalition to Fix Congress,” which “could act like a ‘shadow government,’ developing proposals to clean house area by area.”  “The goal is not to change our public goals,” he concludes his piece, “but to make it possible to achieve them.”  » article

Shall We Get Rid of the Lawyers?
Anthony Lewis, New York Review of Books, April 9, 2009

Pulitzer Prize-winning journalist Anthony Lewis reviews Life Without Lawyers in the April 9^th issue of the New York Review of Books, writing that Common Good Chair Philip K. Howard “is right in saying that we have gone too far in trying to compensate for the unfairness of life to individuals.”  “Law,” Lewis continues, relating one of Howard’s arguments from the book, “does need to consider not just the plight of the disruptive student but the possible cost to the rest of the class, and to the school, of allowing his or her needs to impair the education of other students.”  Later in his review Lewis writes that, “whether through the press or through judicial oversight, there should be unrelenting exposure of judges to public resentment of legal processes that offend common sense.”  And in this regard, he concludes, “Howard is helping the process by this and his other books, and by an organization he formed in 2002, Common Good.”  » article

Appoint Real People, Not Saints
Philip K. Howard, Daily Beast, March 25, 2009

Citing the inability of the Obama Administration to fill sub-cabinet positions in the Treasury Department – “just when we need leadership most” – Common Good Chair Philip K. Howard argues in the Daily Beast that it’s time to “start over” on the way we appoint and confirm presidential nominees.  Offices in the Obama Treasury are empty, Howard writes, “because the confirmation process is an exercise in humiliation.”  “Ever since Zoe Baird’s nanny debacle, nominations are treated as a ‘knockout’ process in which any infraction is reason for disqualification.  This has proved to be a slippery political slope, leading to an appointment process focused more on avoiding (or causing) embarrassment than recruiting the most able people.”  Howard argues that what’s needed is to “[c]hange the goal” and “[c]hange the process.”  “We need people who can do the job, not saints,” he writes on the first point.  And on the second he calls for the creation of “an independent bipartisan committee to vet character and conflicts.”  “Such a committee can judge people in full,” he explains, “not as an atomistic collection of receipts and isolated life events.  Its independent approval will turn down the partisan heat and mute the force of congressional finger-pointing when the occasional nominee turns out to have been a mistake.”  “ America needs action, not paralysis,” Howard concludes.  “The place to start is creating a sensible appointment process that can evaluate people’s strengths as well as their weaknesses.”  » article

Overregulated America
Philip K. Howard, Daily Beast, February 17, 2009

Common Good Chair Philip K. Howard argues in the Daily Beast that what “stands between President Obama and his capacity to act” – to fix the country’s deteriorating roads, build a modern energy grid, spark a Green Revolution – is “[t]he law of the land – all 100 million words of it.”  “America has a crumbling, outdated infrastructure,” he writes, “and can’t fix it because America has a massive, outdated legal infrastructure.”  Howard cites the regulatory and legal requirements – e.g., environmental reviews and procurement laws – that add to projects’ cost and duration, as well as instances where they have been suspended in order to expedite action.  “America must restore the conditions for leadership,” he concludes.  “Amending all the laws on the books that govern contracts would take too long.  Far easier just to waive them temporarily, replaced by expedited processes that allow things to happen. …  America needs a vision of a purposeful future.  The goal should not be perfection, or unanimity.  That’s the false utopia of modern government, leading only to paralysis.  The goal is action, toward projects that most agree are vital.”  » article

Lawyer's Bookshelf: Life Without Lawyers
James D. Zirin, New York Law Journal, February 2009

Attorney James D. Zirin declares Common Good Chair Philip K. Howard’s Life Without Lawyers “highly readable and thought-provoking” in a recent review for the New York Law Journal.  He writes: “The problem, as Howard sees it, is that Americans have not figured out the delicate balance between authority and freedom.  Since the 1960s freedom has been redefined as ‘protections against all authority, public or private.’  Hence, concepts such as due process, originally designed to protect the individual against the excesses of the government, now leave open to legal attack almost any adverse decision, whether in the school, the workplace or even the home.”  “At a time when we are re-evaluating so many institutions in American life,” Zirin concludes, “why not the law?”  » article 

How Modern Law Makes Us Powerless
Philip K. Howard, Wall Street Journal, January 26, 2009

Writing in the Wall Street Journal, Common Good Chair Philip K. Howard argues that President Obama’s calls for a "‘new era of responsibility’" and self-determination are inhibited by “[t]he growth of litigation and regulation [that] has injected a paralyzing uncertainty into everyday choices.”  “We have lost the idea, at every level of social life, that people can grab hold of a problem and fix it,” Howard writes.  “Defensiveness has swept across the country like a cold wave.  We have become a culture of rule followers, trained to frame every solution in terms of existing law or possible legal risk.  The person of responsibility is replaced by the person of caution.  When in doubt, don't.”  What’s needed, he argues, is a reconceptualized view of freedom, one that includes not only political freedom, but also “the power of personal conviction and the authority to use your common sense.”  We have forgotten “that law must affirmatively define an area free from legal interference.”  “Reviving the can-do spirit that made America great requires a legal overhaul of historic dimension,” Howard concludes.  “We must scrape away decades of accumulated legal sediment and replace it with coherent legal goals and authority mechanisms, designed to affirmatively protect individual freedom in daily choices. …  The goal is not to change our public goals.  The goal is make it possible for free citizens to achieve them.”  » article

Don't Let Red Tape Stymie Stimulus
Michtell L. Moss, New York Post, January 26, 2009

In an opinion piece for the New York Post, New York University Professor Michtell L. Moss implores the federal government to waive unnecessary rules and regulations that “eat up time, energy and money” on infrastructure projects.  He cites a recent study by the Surface Transportation Revenue and Policy Commission that shows that federal requirements can add as much as 40 percent to a project’s costs.  Moss also points to several examples in which bureaucratic minutiae, such as the particulars of certain procurement procedures, have delayed projects by as much as 20 years.  “We can't achieve big goals,” Moss writes, “unless we recognize how seemingly small rules and procedural requirements can stifle innovation and delay even well-funded projects.”  He argues that there is “no better time than now, in the midst of a deepening recession,” to do away with obsolete and senseless red tape. » article

Law v Common Sense
Lexington, Economist, January 15, 2009

“The rule of law is a wonderful thing,” writes the Economist in reviewing Philip K. Howard’s Life Without Lawyers.  “But you can have too much of a wonderful thing.  And America has far too much law….”  The review continues, echoing Howard’s central argument: “The relentless piling of law upon law…does not make for a more just society.  When even the most trivial daily interactions are subject to detailed rules, individual judgment is stifled.”  » article

Philip K. Howard on Life Without Lawyers
John J. Miller, National Review Online, January 15, 2009

Philip K. Howard was interviewed by John J. Miller on “Between the Covers,” a podcast hosted on National Review Online.  In the interview, Howard tells Miller: “We do need lawsuits and we do need litigation.  But what’s missing is any application of social norms about what’s a reasonable lawsuit and what isn’t….  [W]hen people begin to distrust the reasonableness of justice, they act as if they live under a tyrant – they go through the day looking over their shoulders….”  » podcast

Interview with the Author of Life Without Lawyers
Lawrence Gridin, Law Is Cool, January 12, 2009

Philip K. Howard was interviewed by Lawrence Gridin of Law Is Cool (lawiscool.com) – “a blog and podcast addressing issues related to law school and the legal field with a Canadian focus” – where he discussed Life Without Lawyers and “what can be done to bring common sense back into the courtroom.”  In the first part of the interview, Howard relates to Gridin that the “‘legal self-consciousness’” that has come to grip society “is not in itself caused by too much litigation.”   He explains: “‘Not that many people bring frivolous claims.  When they do bring frivolous claims, they don’t generally win.  But the trouble is that the system of justice allows people to bring those claims, and allows the plaintiffs to maintain them for years.  The result is that nobody trusts justice.  Because they don’t trust justice, they don’t feel free to do their jobs properly.’”  » article

Litigation Nation
George Will, Washington Post, January 11, 2009

Pulitzer Prize-winning columnist George Will hails Common Good Chair Philip K. Howard’s latest book, Life Without Lawyers, as “2009’s most needed book on public affairs.”  The book is required reading, Will argues, because the anecdotes and arguments Howard relates reveal “a fear permeating American life,” one which “aris[es] from America’s increasingly perverse legal culture.”  “Law is essential to, but can stifle, freedom,” Will writes, summarizing the book’s central thesis. “What should be routine daily choices and interactions are fraught with legal risk.”  “Read Howard’s book,” he concludes, “and weep for the death of common sense.”  » article

A Return To Accountability
Evan Thomas, Newsweek, December 30, 2008

Newsweek features a “Viewpoint” column by Editor at Large Evan Thomas inspired by Common Good Chair Philip K. Howard’s new book Life Without Lawyers.  The piece is headed, “A Return to Accountability: It’s time to reign in a hyper-legal culture that has warped the nation’s schools.”  Thomas cites Howard’s example of Team Academy, a charter public school in Newark that is a model of discipline and academic achievement.  As Thomas notes, “at Team Academy, the students are attentive to their teachers, and to each other, and they far outscore MOST other inner city schools, not because they ‘teach to the test’ but rather because they hearken to a new-old idea: accountability.”  » article

Too Much Law Guarantees Unfairness
Stuart Taylor, Jr., National Journal Magazine, December 20, 2008

Stuart Taylor provides a review in National Journal Magazine of Common Good Chair Philip K. Howard’s latest book, Life Without Lawyers.  The book, Taylor writes, “[is] crammed with telling cases, anecdotes, and data. It brims with insights into how ‘rights’ that were created to prevent ‘unfairness by those in authority’ are now ‘guaranteeing unfairness to the common good.’ …  “[It] makes a powerful case that unless leaders from outside the world of politics overpower the entrenched special interests that dominate both major political parties, even Barack Obama will have little chance of transforming Washington – and no chance at all of fixing our schools, health care, or stultifying legal culture.”  » article

Let's 'Restructure' Washington While We're at It
Philip K. Howard, Wall Street Journal, December 19, 2008

Writing in the Wall Street Journal, Common Good Chair Philip K. Howard argues that it’s not only Detroit that needs ‘a complete restructuring,’ but also Washington itself.  “Like Detroit,” he writes, “ Washington has lost its way.”  Not only does it waste hundreds of billions of dollars, “but [it] also burdens local governments and the private sector with legal requirements that no longer serve the public good.”  Howard calls on Congress to, among other prescriptions, trim the federal government’s ‘legacy obligations,’ streamline its management, and increase its accountability by winnowing “decades of accumulated law.”  “It’s worth the effort,” he concludes.  “Removing the shackles of outmoded law will unleash untold resources and human energy.”  » article

Barack Obama on 'FOX News Sunday'
FOX News, April 27, 2008

In an interview with Fox News’ Chris Wallace, Democratic presidential candidate and U.S Senator Barack Obama suggested that a “top-down command and control” regulation environment “…creates a lot of bureaucracy and red tape and oftentimes is less efficient.”  Senator Obama suggested that “If you simply set guidelines, some rules and incentives, for businesses – let them figure out how they’re going to, for example, reduce pollution,” creates a more efficient regulatory climate “…than dictating every single rule that a company has to abide by.” » transcript

Outlawing Fun -- Have Our Courts Gone Too Far?
Margaret Lowery, Madison County Record (IL), April 20, 2008

Drawing heavily on the writings of Common Good Chair Philip K. Howard, Margaret Lowery of the Madison County Record writes that “[o]ur judicial system has forgotten that lawsuits concern not only the parties to the litigation, but everyone in society.”  Lowery’s article recaps the Tomlinson case from England in 2003, in which the English equivalent of the Supreme Court found that “misguided concepts of justice hurt the public.”  Noting a lack of “legal certainty” in American courts, Ms. Lowery writes that “when a legal system finds liability in every possible activity of life, it becomes an arbitrary form of governance.”  Lowery adds that “[t]he general public is now afraid of our Courts and of our legal system, because anyone can sue anybody for anything.”  She suggests that “the fear of lawsuits materially alters how people live” in the United States, noting that “schools have removed playground equipment, banned dodge ball and tag because of liability concerns…jungle gyms, diving boards, and seesaws are now relics,” and that as a result, “…our children, rescued from the risks of roughhousing and accident, suffer from the far greater risks of obesity, drug abuse and depression.”  Lowery closes by arguing that “[i]nstead of focusing on how a ruling will affect one litigant, Courts must weigh the affect on the community as a whole.” » article 

Related: When Judges Won't Judge by Philip K. Howard

Foreign Courts Wary of U.S. Punitive Damages
Adam Liptak, New York Times, March 26, 2008

“Most of the rest of the world views the idea of punitive damages with alarm,” writes Adam Liptak in his legal column for the New York Times, highlighting criticisms of punitive damages by legal thinkers abroad. Some think “it is not fair…to give plaintiffs a windfall beyond what they have lost.” Others fear plaintiffs and juries act as “private public prosecutors” and mete out punishment without due process. Most disfavor “the U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages,” considering the “ad hoc opinions of a jury” to be a “poor substitute for the considered judgments of government safety regulators.”  Liptak notes that large awards, such as the $5 billion (later reduced to $2.5 billion) punitive damages against Exxon, “terrify foreign courts” and that other countries that do allow punitive awards typically do so “in limited circumstances and modest amounts.”

more »

US Legal System 'Worse than Russia'
Michael Herman, Times (UK), March 18, 2008

According to Michael Herman’s article in the Times, “Fear of the American legal system has created an atmosphere in which lawyers working for European businesses would prefer to face a major dispute in Russia or China than the US.”  A survey of 180 Europe-based in-house counsel commissioned by the international law firm Lovells found that “the US [legal] system, although less corrupt than most, is ‘filled with traps in which the inexperienced or uninformed may easily become caught’” such as the “multiplicity of courts, prosecutors and regulators at state and federal levels.”  This survey’s findings add weight to the growing concern that major employers and investors, fearing America’s unpredictable civil justice system and regulatory environment, may take their business elsewhere.

Freedom Means Responsibility
George McGovern, Wall Street Journal, March 7, 2008

In a Wall Street Journal opinion piece, Common Good Advisory Board member and former U.S. Senator George McGovern asks, “Why do we think we are helping adult consumers by taking away their options?”  McGovern says that “[u]nder the guise of protecting us from ourselves, the right and the left are becoming ever more aggressive in regulating behavior.”  He goes on to decry government paternalism in health care, the economy, and lending practices, comparing them to other segments of society where we accept risk: “We don't take away cars because we don't like some people speeding. We allow state lotteries despite knowing some people are betting their grocery money.” McGovern later suggests that in order to maintain a “healthy civil society,” it is important to make society aware of risky choices without forcing citizens to avoid them: “We don't operate mindlessly in trying to smooth out every theoretical wrinkle in life.…The nature of freedom of choice is that some people will misuse their responsibility and hurt themselves in the process. We should do our best to educate them, but without diminishing choice for everyone else.” » article 

I’m Not Running for President, but....
Mayor Michael Bloomberg, New York Times, February 28, 2008

New York Mayor Michael Bloomberg announced that he won't be running for President, but is adamant about the need to “steer the national conversation away from partisanship and toward unity; away from ideology and toward common sense.” Mayor Bloomberg emphasized the need for practical solutions that aren’t limited by politics-as-usual, some of which “have traditionally been seen as Republican, while others have been seen as Democratic.” Common Good hopes that the Mayor’s call for bold, independent and innovative common-sense solutions--that “more of the same won’t do”--will resonate with candidates and voters in 2008.  This approach, as the Mayor agues, can “produce progress on the most critical issues” in our hospitals, our courts, and our schools. » article

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