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The Stifled Society

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The Lost Art of Drawing the Line: How Fairness Went Too Far


By Phillip K. Howard


In The Death of Common Sense, which appeared in 1995, Philip K. Howard offered an attack on rigid legal roles and a plea for the exercise of human judgment. In many domains, Howard complained, the law prohibits people from responding sensibly to the particulars of a situation. In 1988, for example, Mother Teresa and the Missionaries of Charity agreed to convert two abandoned buildings into a homeless shelter; but New York City's building code requires an elevator in every renovated multiple-story building, and so the Missionaries were told, after two years of red tape and long discussions, that their promising project could not go forward because it did not comply with the regulations-even after they explained their order's religious beliefs, which prohibit the use of modem conveniences, including elevators. Mother Teresa ultimately gave up. No shelter was built.


In the same indignant vein, Howard pointed to regulatory obstacles to much needed public toilets in New York, in the form of roles requiring every such toilet to be accessible to handicapped people; to the endless requirements for day-care centers, which have driven child care underground, where there are no regulatory protections at all; and to environmental regulations that ignore cost and waste resources on trivial problems. Offering many such examples, Howard portrayed a maddeningly bureaucratized legal system, the sort of thing to be found in a dystopian science-fiction novel.


Howard's argument received a great deal of sympathetic attention. He influenced the Clinton administration's "reinventing government" initiative, which attempted to focus attention on results and performance, and to allow people to find their own way to make workplaces safer or to clean the air. Howard also appeared to affect the thinking of prominent Republicans; Senator Dole took a great deal of interest in Howard's diagnosis of the problem. And it is a principal theme of the Bush administration-even at this early stage--to champion an increased flexibility to adapt to particular situations, which was one of Howard's major concerns. It is highly likely that the Bush administration's efforts at regulatory reform have been influenced, at least indirectly, by Howard's claims.


The Death of Common Sense was in many ways a fine book. Howard is an unusually vivid writer, and he is attractively nonpartisan. His arguments cut across the ordinary political divisions. He was undoubtedly correct to point to the pathologies of role-pervaded law. In many contexts, things would be better if officials were allowed to exercise their own judgment, rather than facing the mindless constraints of roles. But Howard's book was also a bit of a lawyer's brief, a polemic. He made his case not with careful studies of government practice, but with memorable anecdotes, with a catalog of instances in which the constraints of roles seem truly ludicrous.


Arguments in this vein are much more convincing than they deserve to be. Using Howard's own method, it would not be difficult to produce a very different kind of book (called, say, The Abuse of Common Sense) whose point was to catalogue arbitrary exercises of discretion by those not constrained by dear roles. Such a book might point to capriciousness in the sentencing of criminals; to unfair discipline by high school teachers; to life-destroying blunders by administrators of welfare programs; to randomness in punitive damage awards from juries; to personnel offices that transfer people, and refuse to promote them, in a whimsical and sometimes discriminatory manner. Such a book could be every bit as powerful as the book that Howard chose to write. (In 1969, the law professor Kenneth Culp Davis actually produced an influential book in just this vein, called Discretionary Justice.)


Still, it is impossible to deny that Howard was pointing to a serious problem in modem institutions--and impossible also to deny that in many places, role-bound behavior should be loosened, so as to enable people to consider the needs of particular situations. And even though Howard wrote with passion, The Death of Common Sense was also restrained, even quiet. Howard's new book has a harder edge, and in some places it is hectoring. This is a lawyer who really dislikes lawsuits. Howard's basic argument is that by surrounding employers, teachers, and managers with the constant threat of litigation, the legal system prevents them from having authority or exercising responsibility. In fact, Howard depicts a society so closely governed by law and litigation that it has, in a sense, gone mad.


Howard prominently states that he is the son of a Presbyterian minister, and it does not seem unfair to say that in his new book he offers a kind of sermon, with a quasi-Biblical account of a "fall" from community, mutual accommodations, and agreed-upon authority to courtrooms, adversariness, and insistence on rights. His argument is worthy of attention not because it is entirely convincing, but because he states, with unusual lucidity, a position that is widely and perhaps increasingly held. A proper understanding of the strengths and the weaknesses of that position might produce better thinking about the choice between rules and legal rights on the one hand and discretion on the other--and might therefore enable us to see, more clearly than before, the settings in which one or another choice makes sense.



 


Many of Howard's concerns can be found in his opening tale of a double slide in Oologah, Oklahoma. In 1995, a small child was injured while playing on a slide, and his parents sued the town. As a result, the town board auctioned off the slide for private use. Howard thinks that this case is emblematic: "all over America, playgrounds are being closed or stripped of standard equipment." The reason is the fear of lawsuits. Yet the destructive effects of legal rights are hardly limited to schoolyards. Three employees of the Seattle Police Department fell out of their swivel chairs, and were injured, and received disability benefits. As a result, Seattle now has straight chairs, and employees have to strain to speak with one another, and complain about cricks in their necks.


"Avoiding risk is now practically a religion;' Howard asserts, and "the headlong pursuit of safety is killing off the simple pleasures of life." He believes that the real problem, the overlooked problem, involves not injuries but lawsuits. Since "Americans believe that fairness to individuals is the goal of justice," lawsuits are proliferating, and the fear of litigation is making it difficult for people to exercise authority in their jobs or anywhere else. As Howard depicts the situation, teachers are terrified of charges of sexual harassment, and so for their own protection they require video surveillance in music classes and art classes. Cafeterias must now be peanut-free, because a small number of visitors will be allergic to peanuts. For fear of legal action, guidance counselors are afraid to tell the truth about their students. In order to avoid malpractice suits, doctors turn crucial decisions over to families. In each of these cases, Howard thinks that the specter of law is preventing sensible human interactions.


Howard devotes a great deal of attention to the subject of education. His major claim is that good teachers should be given far more room to show their own initiative and creativity. He invokes the memory of his own ninth-grade English teacher, one Hillyer Rudisill, who would throw erasers at students who were caught daydreaming: "He'd probably be sued today, but we loved it." Howard says that for someone to be a good teacher, what matters is not that rules be followed, but that the instructor's "own spirit" be brought "into the classroom:' As an unintended result of the omnipresence of rules and litigation, rigid educational bureaucracies have replaced individual spirits, thus depriving teachers of the chance to harness their own creativity for the benefit of students.


That is precisely what Howard wants to harness, and so he is greatly skeptical of national testing, which he sees as "the latest drill." The problem with this drill is that the test might well become "the main measure of success;' thus turning elementary schools into "SAT review courses, with curiosity and discovery stripped out in favor of training for the answers:' For this reason, Howard fears that testing reform will "become yet another symptom of the problem." What Howard seeks instead is "teachers and principals acting on their own instincts and judgments." Bureaucratic rules, and the risk of lawsuits, stand as major obstacles here. "Decisions like disciplining, grading, or even deciding who makes some club or team must comply with organized procedures and standards." The problem with the proceduralization of education is that it eliminates human judgment and human choice. The objective guideposts become ends in themselves; and compliance, rather than personal perception, is the order of the day. This leads to a situation in which "teachers, not surprisingly, are giving up."


For Howard, educational failure is part of a broader problem that is faced by institutions of many kinds. When organizational directions become rigid and take on a life of their own, and when individuals are not permitted to make "sense of the situation;' failure is inevitable. In the 1970s, Japanese businesses recognized this problem and attempted to take advantage of worker creativity in product assembly and design. Howard reports that American businesses similarly "rediscovered the human" in the 1980s, producing workplaces less bound by rules laid down in advance. Howard thinks that this was a terrific success. In his view, it is not power but powerlessness that corrupts, because it produces an absence of accountability, and because it leads people to follow the rules and to protect themselves from lawsuits, rather than to do what is right.



 


For his chief example of a system that works, Howard returns to the subject of education and invokes Carmen Farina, a school principal in Manhattan. Apparently Farina's school has become one of the most sought after in New York City. The reason, Howard says, is that Farina has taken control of the school, and has not allowed herself to be hampered by rules and threats of litigation. More particularly, Farina has asserted the authority to get rid of bad teachers, and she has allowed good teachers to exercise their own creativity. Before Farina's stewardship, almost everything at the school was mandatory, and teachers did not meet or work together. Now meetings are voluntary, but frequent; and people are really cooperating.


Howard thinks that the reason for all this good news is that "there's someone who can make decisions." If things go wrong, Farina has the authority to set them right, and she is entirely willing to give her teachers the authority to take on new challenges. Howard finds a general lesson here: "In the few instances where government has reclaimed personal authority away from bureaucratic protocols, the liberating impact on the department has been almost immediate." As a case-in-chief, he cites the abolition of the civil service system in Georgia's Office of Planning and Budget in 1992. According to a former office head, the change dramatically improved performance.


Howard is aware that procedural safeguards, and the private right to sue, are often justified as a means of protecting the rights of individuals. In his view, however, the effort to guarantee fairness to every person has a range of unintended bad consequences. It can prevent important decisions from being made at all, as when employers refuse to discharge bad workers for fear of legal action. It can also harm people who must face bad teachers, or bad performance, while the procedures run their course. Indeed, Howard goes much further: "Due process, striving to ensure fairness to individuals, has a side effect when applied to cooperative activities like running schools: It basically kills the culture.'' The reason is that due process ensures that the "floor of acceptable behavior" will keep "dropping;' simply in order to provide protection to those who insist on their rights. Instead of individual hearings, Howard seeks sensible judgments by those known to have the authority to make them. "Giving people authority, to choose and be chosen about, is the only way to release the human spirit."



 


Howard applies the same principles to the area of race relations, where he thinks that civil rights law is out of control, in large part because it has helped to bring about an adversarial relation between whites and blacks, who are filled with suspicion of each other. One of his central claims is that "people are walking on eggshells" as a result of the law. In his view, legal mechanisms designed "to protect individual African Americans against unfairness" have been "counterproductive, impeding black progress and racial healing." To support this charge, Howard points to social science evidence suggesting that when dealing with African Americans, the body language of whites shows "that they're not being candid and, indeed, are uncomfortable dealing with minorities." Issues of race are not discussed honestly, owing to the sensitivity of the subject. "Just mention a racial issue in mixed company, and all the oxygen drains out of the room, leaving whites shriveled up and helpless, and blacks seething with righteous indignation."


At first glance, all this seems to have little to do with law. But Howard believes that anti-discrimination law "sits squarely at the center of modern workplace relations;' and that it has a significant effect on how people relate to each other, so that "a charge of racism hangs over black-white relations like a gun with a hair trigger." The result is that whites are full of guilt and fear, and are all too willing to engage in self-censorship, while minority group members know that whites are not being honest. And a prime source of this dishonesty is the simple threat of lawsuits: "The availability of the race card is genuinely terrifying to whites." This is not a benign terror. Howard thinks that it has adverse social consequences. Thus whites are reluctant to put blacks in high positions, for fear of a lawsuit if things do not work out. "It's hard to imagine a more powerful disincentive to black advancement than white apprehension about discrimination claims." Here as elsewhere, the risk of legal action has a range of unintended harmful effects.


To solve the problem, Howard offers a dramatic suggestion. He believes that individual citizens should be deprived of the power to bring civil rights actions. Instead, "the right to bring individual claims should be entrusted to an unbiased third party, such as government." Since a high percentage of individual claims "are too unreliable;' private actions should be available only if they are brought by those complaining not of unfairness against individuals, but of "patterns" of discrimination against whole groups of people.


Howard closes with a discussion of "the secret to freedom." The current social "villain" consists of "an oppressive legal structure;' one that scrutinizes "almost any individual choice or event that anyone cares to complain about." He thinks that law now "looms over daily choices, demanding proof by objective criteria." The solution is to eliminate this scrutiny and instead to rely on human judgment. Once legal constraints are removed, "people on the spot" will be given the authority to do "what they think is right:' Rather than courtrooms and rules, Howard wants to encourage the free and open judgments of actual human beings. This is the secret to freedom, and Howard's plea for the future.


 


There is some good sense here. In many contexts, the legal system is too cumbersome and confining, and the threat of lawsuits can indeed have unintended bad consequences. It is well known that many doctors practice "defensive medicine;' not to help patients but to fend off the risk of litigation; and defensive medicine, of one or another sort, is hardly limited to physicians. In criticizing rule-pervaded decisions, Howard is actually making an old point, much emphasized by Aristotle, to the effect that good judgment is highly alert to the particulars of the situation. It was in this spirit that Aristotle invoked the Lesbian Ruler, which is not rigid and is able to bend with the individual shape that it is measuring. For Aristotle, as for Howard, this is how the best judges operate as well.


Everyone knows people who possess the elusive quality of wisdom--the ability to look at manifold details, to consider them all at once, and somehow to produce a good method for handling them. Rulefollowers are impressive in many ways; but they are not likely to be wise, because their rules are too crude to fit the details of human situations. When teachers, employers, and managers are constantly thinking about lawsuits and the letter of the law, they may not be able to act wisely. On these counts Howard is saying something true and important.


Yet Howard's argument has two serious vices. His depiction of modern American life is greatly overstated. It seems odd to say that Americans are generally terrified of being sued. Where is the evidence? Moreover, Howard relies far too much on colorful anecdotes, and offers no systematic argument that what he likes, a system of "authority," would be better than a system surrounded by legally enforceable rules. Indeed, he shows no awareness that a systematic argument is even required. These two flaws have a common source: Howard's effort to make his case by means of vivid examples. On inspection, Howard's method turns out to be a bit too close to that of a Reagan-style stump speaker: he offers simple, memorable illustrations of social pathologies, and suggests that the examples by themselves establish what is broken and what must be done to fix it. None of this means that Howard is wrong. But it does mean that he has not established that he is right.



 


Consider the issue of mandatory testing in the schools. Howard wants to allow good teachers to exercise their own creativity, and he fears that mandatory testing will ensure that classrooms are devoted not to learning but to preparation for tests. To be sure, a school filled with excellent teachers is likely to be better than a bureaucratized system in which students are turned into test-taking machines. (With the right definition of "excellent teachers," this is true pretty much by definition.) But is the point a sufficient argument against mandatory testing? Howard does provide some brief examples of schools that cheat, thus inflating the results; but he offers no systematic evidence that, in the real world, testing would do more harm than good. Of course testing could alter the educational experience for the worse; but this is no more than a possibility. It is also possible that testing would ensure greater classroom attention to basic skills in, say, reading and mathematics. Indeed, it is possible that creative teaching and mandatory testing could complement one another. Schools could authorize their teachers to use their creativity to see to it that their students learn. Among the things that students might learn are fundamental skills, which can then be tested.


To know whether we should rely on teacher discretion rather than on tests, we need to know whether the teachers whom we are likely to have will do better, in the aggregate, without mandatory tests than with them. In his very brief discussion of this large issue, Howard offers nothing to help answer that question. He seems to think that it is enough, for his purposes, to compare the best rule-free teachers with the worst-case scenario for mandatory testing. Worse still, he appears not to realize that any judgment about mandatory testing is one that ought to turn on a great deal of evidence.


The same difficulties pervade many of Howard's arguments. As a school principal, Carmen Farina does seem able to do better than she would if cabined by a series of rules and regulations. But it does not follow that American school systems would do better, all in all, if they reduced the constraints of rules and laws, and just asked their principals to try to do what Farina has done. When it is exercised well, authority is likely to be better than rule books, if only because wise people, armed with authority, can adjust to the particulars of their situation. But rule books, if they are good ones, are likely to be better than authority exercised poorly, if only because bad authorities can abuse their discretion, making decisions that are foolish or worse. In every context with which he deals, Howard seems to think that in choosing between authority and rules, it is sufficient to produce impressive examples of well-exercised authority and pathologically rule-bound law. But the important question involves the difference between the two alternatives as they operate, warts and all, in the real world.


To see the problem clearly, consider an instructive example not addressed in Howard's book. Under federal law, the Social Security Administration must decide whether Social Security claimants suffer from a disability. The governing law defines disability in a fairly vague and open-ended way, saying that people count as disabled if they are unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." For many years, administrative law judges exercised authority in Howard's preferred fashion-deciding, in individual cases, whether particular people qualified as disabled. The result? A big mess, as different judges used different criteria to decide whether people should qualify. Similarly situated people were not treated similarly, and decisions took a great deal of time.


In 1978, the Social Security Administration responded by reducing the authority of administrative law judges and creating a fairly mechanical "grid" in which the claimant's age, educational background, and residual physical capacity would be used to decide who counted as disabled. Of course, some people complain that the "grid" is too rigid, and that things would be better if administrative law judges could exercise their discretion so as to come to terms with the particulars of the case. But informed observers think that the grid is much better than what preceded it, because it makes things much simpler, and ensures more in the way of equal treatment of the similarly situated, and prevents the arbitrary exercise of discretion. Rule-bound though it is, the grid system is both fairer and less timeconsuming than what preceded it.


Howard does not sufficiently appreciate the possibility that "authority" will be worse than a system of rules. The choice between the two, or the appropriate mix of the two, depends on the context, and on our assessment of the possibility of producing decent rules, or of trusting people who exercise discretion. In the 1990s, Montana removed any numerical speed limit during the day and allowed police officers to give tickets to anyone who did not drive in a "reasonable and prudent" manner. Predictably enough, the absence of numerical limits created serious problems for law enforcement, and in 1998 the Montana Supreme Court ruled that the requirement of "reasonable and prudent" speed was too vague to be constitutional. Howard is plainly a sensible person, and I doubt that he really believes that, with respect to excessive speed on the highways, the discretionary authority of individual police officers is better than clear rules laid down in advance.


If he does believe this, it is not inconceivable that he is right. But any reasonable judgment must depend on actual practice: on whether a system of individual authority, without rules, affords sufficient predictability to drivers, and contains enough protection against the abusive exercise of discretion. In some contexts, a system of rules and rights is better than a system of discretion and authority, simply because it makes decisions simpler and easier, and because it reduces the total number of mistakes. Of course there are contexts in which we do better to authorize people to do what they think best. A rule-bound approach to imposing capital punishment would be too rigid to make sense. In making the comparison, we need to know which approach will produce more mistakes, and often the answer to that question will argue against "authority."



 


I have been emphasizing the choice between a system constrained by rules and procedures and a system in which people are enabled to do what they think best. This is one of Howard's major concerns, but he runs it together with a separate question, involving the unintended bad consequences of a promiscuous right to sue. We could think that rules and procedures are often best, while also thinking that lawsuits are too common and have many bad consequences. Howard's concerns here are hardly baseless, but he seems to me to overstate the problem. As he portrays the situation, anyone can sue anybody for anything, and countless Americans are terrified by the prospect of being sued. In doing what we do, our major motivation is to stay out of courtrooms. But he provides no facts and figures to show that this seemingly inflated description depicts reality.


For many schools, and for many employers, the prospect of a suit is at most a secondary consideration, and people do not generally arrange their affairs around the risk of litigation. Is it really true that schools are generally stripping or removing their playground equipment because people might sue? Howard offers no proof for such a claim. In any event, the fear of a lawsuit is not always or necessarily a bad thing. When people are afraid that they might be sued, they will avoid all sorts of harmful actions that they might otherwise contemplate. Theft and sexual harassment are less likely simply because those who engage in these practices can be held accountable in court. In some contexts, fairness has not gone nearly far enough, as people engage in objectionable behavior when they know that, practically speaking, they are not likely to be caught or punished. To know whether we should complain about litigation, we need to know about its aggregate effects. Despite many suggestive examples, Howard says too little here.


 


In the context of race relations, Howard urges the abolition of individual causes of legal action. He wants to give the government a monopoly on civil rights actions (or perhaps--he is not clear on this point--to allow private actions only on behalf of large groups). To support this reform, however, it is not enough to point to cases in which the threat of litigation has had unfortunate effects. We need to know the magnitude of those effects, not just the fact of their existence. And we also need to know the magnitude of the beneficial effects of the individual right that Howard wants to eliminate.


The threat of litigation undoubtedly helps to deter discriminatory conduct; and when discrimination occurs, litigation can provide a corrective and a stern warning to others. For this reason, there are real dangers in any proposal to remove the right from individuals and to give it to public officials, who have limited resources and many things to worry oven If individuals are deprived of the right to sue for discrimination, there can be no doubt that more discrimination will occur. Is the increase justified by Howard's concerns about the unintended effects of the right to sue? Maybe. But Howard provides nothing that would enable us to answer the question with any confidence.


Howard also overstates the effects of law. He writes as if white people are constantly living by their nerves, and the reason is that they are afraid of lawsuits. But if white people are to some (limited) extent anxious, it is often owing to social pressures that have little to do with law. In some sectors, whites are fearful that they will be perceived as racist, and they silence themselves accordingly. There is nothing unusual about this. Political correctness, in one form or another, is omnipresent in human life; it can be found on the left, on the right, and everywhere in between. In most domains, people talk as they do partly because they do not want to offend others or to present themselves in an unattractive light. In many nations around the word, people will even show ethnic, religious, or racial prejudice not because they really are prejudiced, but because this is the socially preferred method of self-presentation. Since racism should be deplored, it is not altogether bad if social pressures are producing a degree of circumspection and even hypocrisy in some whites. Of course, Howard is right to say that the civil rights laws are having some bad unintended consequences. Some employers are certainly reluctant to take a chance on some African Americans, for fear that if things do not work out they might find themselves in court. The point has received its strongest empirical confirmation in studies involving disabled people. The Americans With Disabilities Act has made employers reluctant to hire disabled people in the first place, because disabled people are perceived by many employers as lawsuits waiting to happen. But we cannot take this point, standing by itself, to be a sufficient argument for radical reform, or for believing that fairness has gone "too far." We need to know the extent of the adverse effects. And we need to compare the adverse effects against the beneficial consequences of anti-discrimination law, which include prevention, in many contexts, of discrimination that would other-wise occur. Howard has written a nostalgic book. Some of what he presents has the feel of a celebration of the word of The Brady Bunch--a celebration of small towns and decisive leaders, of a time in which people were not surrounded by bureaucracies and courts, but were free to follow their own judgments about right and wrong. Suggesting that America suffers from legal terrorism, Howard contends that if we liberate ourselves from the constraints of the rules and the lawsuits, we will be able to recover our own creativity and even our freedom itself. Howard radiates decency, and his heart is in the right place, and about some things he is surely correct. The problem with his book is that it is not so much an argument as a mood. He compares authorities from heaven with laws from hell, without making a sufficient effort to explore, at the level of theory or practice, the factors that will lead to the right mix of rules and discretion in the actual human world.


Cass R. Sunstein is a contributing editor at The New Republic.

By Cass R. Sunstein

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