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Is The Law Making Us Less Free?

Mar 14, 2014
Originally published on April 20, 2015 1:04 pm

Part 1 of the TED Radio Hour episode Solving It.

About Philip K. Howard's TED Talk

Lawyer Philip K. Howard says the U.S. has become a legal minefield — especially for teachers and doctors, whose work has been paralyzed by fear of lawsuits.

About Philip K. Howard

Attorney Philip K. Howard is a leading voice for legal reform in the U.S. In 2002, he formed the nonpartisan group Common Good to advocate for an overhaul of American law and government. Among Common Good's suggestions: specialized health care courts, which would give lower but smarter awards, and a project with the NYC Board of Education and the teachers union to change the disciplinary system in New York public schools. His forthcoming book is called The Rule Of Nobody.

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It's the TED Radio Hour from NPR. I'm Guy Raz. And our show today is all about solving problems, problems we created. So take Chloe Stirling, for example. She's 11 years old, lives in Illinois; and Chloe loves cupcakes.

C. STIRLING: I like chocolate because I'm a chocoholic. So that's probably my favorite flavor.

RAZ: And Chloe doesn't just love eating cupcakes; she loves making cupcakes. And she was so good at it, she started selling them out of her mom's kitchen. She'd sell them at school, birthday parties - she and her mom told the local newspaper that Chloe's business was clearing something like 200 bucks a month.

H. STIRLING: People would come to a kid's birthday party and have a cupcake and say, oh, my gosh, where did you get these from?

RAZ: And for two years, business was pretty good. Chloe and her mom thought she'd save enough money for a car by the time she was 16. But then...

STIRLING: Well, the health department called, and they said I can't bake anymore because I don't have a business license. It's like I kind of get that I needed one; I guess they're right. Like, you need like a permit to sell it to people.

RAZ: We heard about this story from Philip Howard. He's a lawyer who keeps track of these kinds of stories.

PHILIP HOWARD: The authorities shut her down because she needed to either buy a bakery or build a separate kitchen, under the health codes. Well, we are increasingly moving towards this almost rule-based fetish about law, where it's not a question of what's right and wrong anymore. It's a question of, did you comply? And if you didn't comply, throw the book at them.

RAZ: And Chloe didn't even get mad about it. She just accepted that that's the way it is.

STIRLING: I learned that, like, to run a business like this, that you have to follow the rules. And you have to, like, get certain steps that you can, like, give them out and sell them.

RAZ: Chloe just wants to give out cupcakes and sell them, but the legal system we built to protect us can't always accommodate common sense - like Chloe and her cupcakes. So today on the show, we're going to hear from four TED speakers with four ideas about how to solve it - fix our broken systems.

HOWARD: I mean, recently, a lifelong employee of the D.C. parks department had a heart attack in front of a fire station. The firemen watched and didn't help him out because the rules said you're supposed to call 911. So someone called 911, and the ambulance happened to go to the wrong quadrant of the District of Columbia; and the man died. They were following the rules.

RAZ: And it's stories like this one that drive Philip Howard and a lot of people crazy because the law, in many cases, has become so difficult to understand and interpret and change. Here's another story Philip tells on the TED stage.


HOWARD: A couple of years ago, I was hiking near Cody, Wyo. It was in a grizzly bear preserve, although no one told me that before we went. And our guide was a local science teacher. She was wholly unconcerned about the bears, but she was terrified of lawyers. The story started pouring out. She had just been involved in an episode where a parent had threatened to sue the school because she lowered the grade of the student by 10 percent 'cause he turned the paper in late.

The principal didn't want to stand up to the parent 'cause he didn't want to get dragged into some legal proceedings. So she had to go to meeting after meeting, same arguments made over and over again. After 30 days of sleepless nights, she finally capitulated and raised the grade. She said life's too short. I just can't keep going with this. At the end of this day, I could have filled a book just with stories about law from this one teacher. Now, we've been taught to believe that law is the foundation of freedom. But somehow or another in the last couple of decades, the land of the free has become a legal minefield.

RAZ: So I hear this and I'm thinking, you can understand this teacher. I mean, yes, she's probably a person of integrity and principle but at a certain point, she was just sort of like, forget principle. This is too powerful to fight.

HOWARD: Right. And so let's take that apart. So the first problem in that story is that the principal wouldn't stand up for her. So the principal should have told the father, who was threatening to sue, go jump in a lake. That's the rule in this classroom. Everybody knew it. Period. Then let's say the father acts on his threat and brings a lawsuit. Then the judge must call a conference immediately and say, I'm going to give you five minutes to withdrawal this claim; otherwise, I'm going to sanction you for costs for abusing the offices of the court. There's no cause of action for excuses for turning in a school paper late.

RAZ: So more laws mean more chaos, then.

HOWARD: It's definitely made - and so what we have is a combination of anarchy and public paralysis. There's this fetish with rules that has kind of replaced morality. And it works both in a gotcha sort of way, and it works in an avoidance of responsibility sort of way. And it's infected our political culture and our broader culture.


HOWARD: Tort reformers have been sounding the alarm. The lawsuits are out of control. And we read, you know, every once in a while, about these crazy lawsuits - like the guy in the District of Columbia who sued his dry cleaners for $54 million because they lost his pair of pants. My favorite, though, are all of the warning labels. Caution, contents are hot, on billions of coffee cups. My favorite warning was one on a 5-inch fishing lure. I grew up in the South, and wiled away the summers fishing. Five-inch fishing lure - a big fishing lure with a three-pronged hook in the back. And on the side it said, harmful if swallowed.


HOWARD: So none of these people are doing what they think is right. And why not? They don't trust the law. Why don't they trust the law? 'Cause it gives us the worst of both worlds. It's random. Anybody can sue for almost anything and take it to a jury. No - not even an effort of consistency. And it's also too detailed. In the areas that are regulated, there's so many rules no human could possibly know it. So what do we do about it? We don't - we certainly don't want to give up the rights, when people do something wrong, to seek redress in the courts. We need regulation to make sure people don't pollute and such. We lack even a vocabulary to deal with this problem. And that's because we have the wrong frame of reference. Law has to be simple enough so that people can internalize it in their daily choices. If they can't internalize it, they won't trust it.

And how do you make it simple? Because life is complex. And here is the hardest and biggest change. We have to restore the authority to judges and officials to interpret and apply the law.


HOWARD: We have to re-humanize the law. To make law simple so that you feel free, the people in charge have to be free to use their judgment to interpret and apply the law in accord with reasonable social norms. As you're going and walking down the sidewalk during the day, you have to think that if there's a dispute, there's somebody in society who sees it as their job to affirmatively protect you if you're acting reasonably. That person doesn't exist today.

RAZ: It seems like the heart of your idea isn't so much about a broken legal system, but about the corrosion of authority. Like, we went through a period in our history where we became extremely skeptical of authority, and we're still kind of reacting to that.

HOWARD: That's absolutely right. We no longer believe that any human should have even the provisional flexibility to decide right and wrong. So authority in a public position should be something that's more like a job. It's bounded by legal principles. It doesn't mean people can do whatever they want. It's not unfettered discretion. It's someone who has a set of boundaries around them where the person inside has room to do what's right. Instead, we've created this legal stranglehold on everyone where people are not allowed to do it right, and now they're conditioned to simply ask what does the rule require, rather than what's the right thing to do.

RAZ: But why? I mean, what are they afraid of? Why is that happening?

HOWARD: Well, the way they would say it is we're not supposed to be activists. We are just supposed to be neutral referees to make sure everybody can make their claim. And my response to that is no, that's not true. You're supposed to be judges. And law requires affirmative assertions of norms of right and wrong. Judges must actually draw the boundaries of what a reasonable dispute is, otherwise, everyone loses their freedom. And pretty soon, anybody can get away with pretty much anything.

RAZ: How do we get those people to feel like they can make those judgments? Like, how do we actually make that happen?

HOWARD: It's actually not as hard as it sounds. We need to rewrite and radically simplify and re-humanize the structure of public law in our society where we safeguard against abuses with human checks and balances; where other people have the authority to use their judgment; and where you go area by area, and you simply take 10,000 pages or 100,000 pages of law, and you turn it into something that much more closely resembles a pamphlet.

What's hard is creating the public momentum to abandon the current structure because your - every interest group has a stake in the current system. So let's appoint a whole bunch of independent commissions to come up with proposals about how to make things work. It would be trying to let government become human again.


HOWARD: We've been taught that authority is the enemy of freedom. It's not true. Authority, in fact, is essential to freedom. Law is a human institution. Responsibility is a human institution. If teachers don't have authority to run the classroom or maintain order, everyone's learning suffers. If the judge doesn't have authority to toss out unreasonable claims, then all of us go through the day looking over our shoulders. A free society requires red lights and green lights, otherwise, it soon descends into gridlock. That's what's happened to America. Look around. So what the world needs now is to restore the authority to make common choices. It's the only way to get our freedom back, and it's the only way to release the energy and passion needed so that we can meet the challenges of our time. Thank you.


RAZ: Philip Howard. He's a lawyer who's written a book about how we can start to change all of this. It's called "The Rule of Nobody." Check out his full talk at TED.NPR.org. Oh and about Chloe Stirling, the 11-year-old cupcake entrepreneur, well, after the county shut her down, a local contractor heard about the story, and built her a commercial grade kitchen for free. And Chloe's Cupcake Kitchen is back in business. Stay with us. More on solving it in a moment. I'm Guy Raz, and you're listening to the TED Radio Hour from NPR. Transcript provided by NPR, Copyright NPR.