Jewish World Review March 18, 2002 / 5 Nisan, 5762
Philip Howard, New York lawyer and author of the 2002 book The Collapse of the Common Good, cites playground equipment as one example of "the triumph of individual rights over authority." And he is setting out to do something about that. He plans next month to announce the formation of an organization called Common Good to reverse that trend and not let a single individual bringing a lawsuit determine the rules that bind the rest of us.
These individual rights are not those protected by the Bill of Rights, like freedom of political expression (that is the target of the campaign finance "reformers"), but the right to be compensated for any injury or pain and to be protected from all risk or danger. Such rights were not generally recognized as recently as the early 1960s, when courts, operating under traditional common law, typically set standards of reasonable care and did not automatically send cases to juries.
Today, when anything can go to a jury, we respond with bureaucratic rules that hamper the exercise of authority. Teachers cannot discipline disruptive pupils; their parents might sue. Doctors and nurses cannot provide optimum medical care, lest they be second-guessed by a jury. Government employees cannot use common sense to solve problems, lest they violate bureaucratic regulations or union rules.
Loss of interconnectedness. All this is a legacy of the 1960s. The civil rights movement got Americans into the habit of regarding anyone with a complaint as a righteous victim. The failure of the government to win the Vietnam and antipoverty wars got Americans into the habit of distrusting all institutions and authority. But now, Howard argues, the rules and decisions spawned by these habits of mind have created a tyranny over everyday life and the decline in "social capital"-our interconnectedness with other citizens-documented by Robert Putnam in Bowling Alone.
Can anything be done? Howard is assembling a diverse group of endorsers for Common Good, from George McGovern to Alan Simpson, and is commissioning polls on public attitudes. He has put forward proposals to free teachers to exercise authority and to try medical malpractice cases in special medical courts. But such changes cannot be imposed by a single federal law. Change must come also in state legislatures and state courts, in which trial lawyers have great influence. Business interests and healthcare providers have been frustrated in seeking change, and there is no institutional support for changes in schools or on playgrounds.
Even more important, the habits of mind Howard is challenging have become deeply rooted. Americans have come to think they have a right to sue someone when anything bad happens: The classic case is the woman who successfully sued McDonald's after being badly burned by coffee she said was excessively hot. But there may be a countervailing tide of opinion as well, a tide that has become stronger since September 11. For September 11 showed Americans that our differences are less important than what we have in common. Bureaucratic rules and procedures did not prevent the planes from crashing into the World Trade Center and the Pentagon. But the spontaneous actions of our fellow citizens-the heroes of United Flight 93-did prevent one plane from hitting a possible target in Washington.
In the middle third of the 20th century, Americans experiencing the
traumas of depression and war set up rules to protect themselves from
all risk. But now we know that rigid institutions and rules cannot do that
and can stifle the creativity and initiative that can make society better.
We need, Howard argues, to give people in authority more leeway to use
their judgment and to let citizens act together on their own initiative. As
he has done: It was Howard who in September sent Mayor Rudolph
Giuliani two artists' proposals to shine two shafts of light up from the
World Trade Center site. The lights went on March 11. Now he's trying
to change the nation's mind. Maybe in time we'll see jungle gyms and
seesaws on playgrounds