So, what are we to do about all these lawyers?
Well, if Philip K. Howard, founder of Common Good and author of The Death of CommonSense, is right, the very last thing we want to be doing right now is watching as not one but two attorneys fill up all the sock drawers at the White House. In his new book, Life Without Lawyers: Liberating Americans From Too Much Law,Howard argues that Americans are slowly being choked to death by law. We churn out more than 70,000 pages of new rules in the federal register each year, and the proportion of lawyers in the workforce has nearly doubled between 1970 and 2000. In Howard's view, our reliance on law, lawyers, and lawsuits has turned Americans into fat, neurotic cowards who "go through the day looking over their shoulder instead of where they want to go."
Life Without Lawyers is knit together with the kinds of stories that make law-school graduates want to laugh right along with that joke about what you call a busload of lawyers at the bottom of the ocean. (Answer: a good start.) He reminds us about the Washington, D.C., judge who sued his dry cleaner for $54 million for losing his pants; the teacher sued for repositioning a student's hands on a flute; the schools that now ban running (running!?) at recess; and the 5-inch fishing lure with the three-pronged hook with a label cautioning, "Harmful if swallowed." Throughout, Howard paints a bleak picture of an America that is all "gray powerlessness"—a nation of broken-down citizens shuffling around in fear of litigation while municipalities tear down "dangerous" climbing structures and children comfort themselves with double-stuffed Oreos.
Howard's depiction of America as an ever-expanding sinkhole of laws and regulations actually echoes criticism recently leveled by former Bush administration lawyer, and my friend, Jack Goldsmith. Goldsmith, who ran the Office of Legal Counsel for a time, warned in his 2007 book, The Terror Presidency, of a post-Watergate government culture in which the act of conducting warfare was smothered by overregulation, inspectors-general, and fear. He describes a Bush administration that found itself "strangled by law." Goldsmith's dismay over a pre-9/11 culture in which government officials were too terrified of potential future legal liability to act quickly or boldly perfectly echoes Howard's picture of an America that is now too scared of lawsuits to create, dream, or build.
Oddly, Howard's new book does not address the Bush administration's legal response to 9/11 at all. And that's too bad, because the "war on terror" actually provides a perfect natural experiment in his call to loosen the chokehold of law and allow lawyers to roam free and think big.
In the wake of 9/11, the decision was made, writes Goldsmith, to be more "forward leaning," more imaginative, and less risk-averse in the face of legal constraints on interrogation, information-gathering, and eavesdropping. And with a series of memos declaring that the laws of war did not constrain the president, followed by yet more memos setting out new legal guidelines, a bold—if wholly secret—new legal regime was born.
So the question one wants to pose to Howard in the wake of all this lawyerly liberation is whether the country was better off for it. Did America achieve any of the benefits he predicts? Howard urges, for instance, that liberating ourselves from law and regulation leads to a flowering of creativity. But that doesn't seem to have occurred in the legal aftermath of 9/11. In fact, when the Bush administration shucked off the rules and regulations governing warfare, the resulting ideas were anything but brilliant or new. It was by cutting and pasting random language from unrelated statutes authorizing health benefits that government lawyers like John Yoo created new definitions of torture. Instead of exploring the best ways to update U.S. interrogation methods, we just reverse-engineered techniques taught at the Survival, Evasion, Resistance, and Escape school and pilfered bad ideas from Fox Television's 24.
Howard further argues that if we could just get rid of the cumbersome web of laws and regulations that constricts us, the great untapped reserves of accountability and personal responsibility would flourish once more. In a column he penned last week in the Wall Street Journal,Howard wrote, "Accountability, not law, is the key to responsibility." And in his book he urges, "Accountability is the flip side of freedom. You will be free to act on your best judgment only if others are free to judge you." Yet, er, which lawyer has been held accountable for what amounts to the Jackson Pollock-ing of the rule of law over the past eight years? With the exception of former Attorney General Alberto Gonzales, not one Bush administration lawyer has been held responsible, or assumed a jot of personal responsibility, for his or her legal risk-taking.
To be sure, Howard mainly confines his criticisms of an overlawyered, rights-obsessed America to the realms of health care, education, public agencies, and the plaintiffs bar. But his failure to address the brash risk-takers of the Bush Justice Department makes it difficult to read his book as anything beyond a spanking of America's tort lawyers. His failure to at least grapple with the reality of the eight years we've just spent in a constitutional freefall starts to feel like an omission that swallows the project.
I share a good deal of Howard's concerns about frivolous lawsuits and the ways in which the fear of legal liability can impede sound educational and medical judgment. Inexplicably, my neighborhood playground also lost its "good slide" to a toddler injury. But the cure for "too much law" should not be too little, and the charge to lawyers who feel strangled by the law should not be, "Well heck, then, take some risks and make some up!" If the last eight years can be made to stand for anything in the law books our grandkids will read, let it be for the proposition that the one thing scarier than a bus full of lawyers is a bus without them.
A version of this column also appears in this week's Newsweek.