DJP Update 9-27-2010 Congratulations to Philip Howard again; his latest writings bring dissent from trial lawyers
DJP Comment: I will include Dave Brooks article praising Philip Howard plus Philip Howard’s article in The Daily Beast and then the tweet and link from trial lawyers giving their criticism of Philip Howard and the Brooks article.
Also, you can read more about Philip Howard and Common Good at: http://commongood.org/
Philip Howard of Common Good writes that “David Brooks devotes his New York Times column today to the need to restore responsibility in America, highlighting our ideas and calling it ‘the crucial theme of the moment.'”
http://www.nytimes.com/2010/09/24/opinion/24brooks.html?_r=1
The New York Times
September 23, 2010
The Responsibility Deficit
By DAVID BROOKS
One of the oddities of the current moment is that the country wants a radical change in government but not a radical change in policy.
On the one hand, voters are completely disgusted with Washington. On the other hand, they have not changed their fundamental views on the issues. There has been some shift to the right over the past two years, but the policy landscape looks mostly the way it did over the last few decades. We’re still a closely divided nation; it’s just that we’re angrier about it.
The result is that over the next two years we’ll probably see gridlock on stilts. The energized Republicans will try to reduce the size of government, but they won’t be able to get their bills past President Obama. The surviving Democrats will try to expand government programs, but they will run smack into a closely divided Senate and possibly a Republican-controlled House.
Unable to do anything in the short term, both parties will devote their energies to nothing but campaign gestures for 2012. The rhetoric will fly. Childishness will mount. Public nausea will hit an all-time high.
Somewhere in the country, though, there is a politician who is going to try to lead us out of this logjam. Whoever that person is, I hope he or she is listening carefully to what the public is saying. Because when you listen carefully, you notice the public anger doesn’t quite match the political class anger. The political class is angry about ideological things: bloated government or the predatory rich. The public seems to be angry about values.
The heart of any moral system is the connection between action and consequences. Today’s public anger rises from the belief that this connection has been severed in one realm after another.
Financiers send the world into recession and don’t seem to suffer. Neighbors take on huge mortgages and then just walk away when they go underwater. Washington politicians avoid living within their means. Federal agencies fail and get rewarded with more responsibilities.
What the country is really looking for is a restoration of responsibility. If some smart leader is going to help us get out of ideological gridlock, that leader will reframe politics around this end.
Philip K. Howard has thought hard about the decay of responsibility and what can be done to reverse it. In a series of books ranging from “The Death of Common Sense” to “Life Without Lawyers,” Howard has detailed the ways our political and legal systems undermine personal responsibility.
Over the past several decades, he argues, a thicket of spending obligations, rules and regulations has arisen, which limits individual discretion, narrows room for maneuver and makes it harder to assign responsibility.
Presidents find that more and more of their budgets are precommitted to entitlement spending. Cabinet secretaries find that their agenda can’t really be enacted because 100 million words of existing federal rules and statutes prevent innovation this way and that. Even when a new law is passed, it’s very hard to tell who is responsible for executing it because there is a profusion of agencies and bureaucratic levels all with some share of the pie.
These things weaken individual initiative, discretion and responsibility. But the decay expands well beyond Washington. Teachers don’t really control their classrooms. They have to obey a steady stream of mandates that govern everything from how they treat an unruly child to the way they teach. Doctors don’t really control their practices but must be wary of a capricious malpractice system that could strike at any moment. Local government officials don’t really govern their towns. Their room for maneuver is sharply constrained by federal mandates and by the steady stream of lawsuits that push them in ways defying common sense.
What’s needed, Howard argues, is a great streamlining. He’s not calling for deregulation. It’s about giving teachers, doctors and officials the power to actually make decisions and then holding them accountable. Some of their choices will be wrong, Howard acknowledges, but it is better to live in an imperfect world of individual responsibility than it is to live within a dehumanizing legal thicket that seeks to eliminate risk through a tangle of micromanaging statutes.
Howard proposes expanding specialized health courts, which would be more predictable than the malpractice system. He would lift controls on teachers and civil servants — giving them more freedom but then ending tenure and holding them accountable. He would create commissions to eliminate obsolete laws. He would expand judges’ discretion and end mandatory sentencing.
Howard’s agenda raises some thorny issues. But he has seized the crucial theme of the moment. If bad government undermines responsibility then it should be restructured. And he’s offering one tool a creative politician could use to break through the logjam and help us avoid a truly awful few years.
http://www.nytimes.com/2010/09/24/opinion/24brooks.html?_r=1
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DJP Comment: Trial lawyers, with new name of American Association for Justice (formerly known as the Association of Trial Layers of America (ATLA trademark), did the tweet below under the Twitter name of JusticeDotOrg
The tweet:
David Brooks NYT op-ed: Philip Howard is the answer to restoring responsibility. Except he’s the exact opposite of that. http://ow.ly/2JwLK
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DJP comment: another attack on the person rather than dealing with the issues. Also, when will America deal with the contingency fee that results in so many suits without merit?
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Here is more from Philip Howard in The Daily Beast. Philip Howard gives his five proposals for reviving America and our can-do spirit.
The Daily Beast
September 26, 2010 | 10:56pm
Manifesto for a New Politics
by Philip K. Howard
Hailed by David Brooks for seizing “the crucial theme of the moment,” lawyer and author Philip K. Howard proposes five ways to liberate America, streamline government, and revive our can-do spirit.
Government is broken. It spends money we don’t have, takes no responsibility for the future, and suffocates daily freedoms under a thickening blanket of unnecessary bureaucracy and litigation.
Both the Democratic and Republican parties are to blame. Instead of appealing to our better nature, they promise short-term self-interest of continued entitlements or lower taxes. Instead of leadership for a responsible society, they attack each other with partisan half-truths, oblivious to the critical need to change course.
Changing leaders is not enough. Decades of accumulated law and bureaucracy have made it impossible for anyone to use common sense. New leaders come to Washington and immediately get stuck in the bureaucratic goo.
Government needs to be cleaned out. Government has a vital role in a crowded society, as a steward of common resources and public services. But it cannot deal effectively with the important challenges of today—whether to contain runaway entitlements or to create clean energy—when resources are committed to goals of past decades. Accumulated law has become a fortress for the status quo. Unnecessary law and bureaucracy also act as a heavy weight on society, making it hard for teachers, doctors, and other citizens to pursue their dreams. Many Americans no longer feel they can make a difference.
Government will never fix itself. Washington and state capitals have become disconnected from the public they serve, focused on partisan tug-of-wars instead of on the vital needs of society.
Change can only come from outside pressure. Americans must come together to demand a new approach to governing.
The core principle for change is this: individual responsibility. At every level of society, individuals must be free to take responsibility. This requires streamlining government and law to allow people to use their judgment to meet public goals. Individual responsibility is the key to all accomplishment. It is also the key to accountability. Who is responsible for the failures in government? No one, because government has become a bureaucratic swamp. Where are new leaders? Leadership is basically illegal in a legal thicket.
Five changes are essential to create a responsive government and to revive America’s can-do spirit:
1. Clean out the stables of government. Democracy is not supposed to be a one-way valve, always piling new law on top of old laws. In each area of government, appoint respected citizens and experts to make proposals to clean out unnecessary entitlements, mandates, and regulations. Going forward, laws and regulations should expire periodically under sunset laws. Government must make choices for the future, not stay mired in choices of the past.
2. Radically simplify law. Laws must be understandable to be effective. Write laws to set public goals and general principles. Leave implementation to designated officials, with clear lines of accountability. The Constitution is 16 pages long. No statute should be over 50 pages.
3. Push responsibility down to local organizations. Give back to Americans the freedom to make a difference—without unnecessary interference of centralized bureaucracy, especially in schools and other social services. Let public schools operate with the same freedoms as charter schools. Hold people accountable for results, not bureaucratic compliance.
4. Restore boundaries to lawsuits. Fear of lawsuits has poisoned human interaction in most areas of society, especially health care and schools. Law should set outer boundaries of required conduct, not interfere in everyday disagreements. This requires judges and legislatures to define reasonable social norms as a matter of law. Create special health courts to provide a foundation of reliability and trust, essential to making health care safe and affordable.
5. Revive accountability for public employees. Individual accountability is a critical component of a functioning democracy. Overhaul civil service and teacher tenure: Public servants should have more freedom to take responsibility, and they must be accountable for their choices. Make government transparent; sunlight is the best disinfectant.
There’s nothing wrong with America that can’t be fixed—if Americans are free to use their common sense. But the legal swamp of modern government won’t let us roll up our sleeves and make needed choices. That’s why Americans must come together and force a basic overhaul of America’s governing structures. Our freedom, and our children’s future, depend upon it.
Philip K. Howard, a lawyer, is the author of Life Without Lawyers: Liberating Americans From Too Much Law, just released by W.W. Norton, and the bestselling The Death of Common Sense. He is chairman of Common Good and advises leaders of both parties on legal and regulatory reform.
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Stay well,
Donald
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Donald J. Palmisano, MD, JD
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