TED Radio Hour: Philip K. Howard: How Can Law Be Simplified? The Land of the Free has become a legal minefield, says attorney Philip K. Howard — especially for teachers and doctors, whose work has been paralyzed by fear of suits. The answer? Howard has four propositions for simplifying U.S. law.

How Can Law Be Simplified?

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This is the TED RADIO HOUR from NPR. I'm Alison Stewart.

On today's show, we're discussing fixing our broken systems, and I want to start with a story about my hairdresser.

It's relevant, I promise. Stay with me.

I went to my hairdresser to get a process that involves chemicals. I'd had it done many times before. And when I sat down in the chair, I was presented with a waiver to sign, some sort of legal document that required a witness. I signed it, of course. I like my hairdresser; he's a great guy. But it made me wonder - what has it come to, that, to get something done to my hair, I have to sign a legal document with a witness?


PHILIP HOWARD: Somehow or another, in the last couple of decades, the land of the free has become a legal minefield.

STEWART: That was Philip Howard. He's one of the TED speakers that'll be on our program today.

TED brings together big thinkers to share some powerful ideas from the stage at a TED conference. Ideas like, How Can we Fix our Broken Systems: From the Law to Education and Medicine. Let's get back to TED speaker Philip Howard.


HOWARD: You might have noticed that law has grown progressively denser in your lives over the last decade or two. If you run a business, it's hard to do much of anything without calling your general counsel. Indeed, there's this phenomenon now where the general counsels are becoming the CEOs. It's a little bit like the "Invasion of the Body Snatchers." You need a lawyer to run the company because there's so much law.

HOWARD: My name is Philip Howard and my TED Talk was about how we fix the legal system so that people can make free choices again.

STEWART: Philip says it's not just businesses that are feeling the burden of the law.


HOWARD: It's actually pressed down into the daily activities of ordinary people.

STEWART: We'll talk more with Philip in a moment, but first let's hear more of his 2010 TED Talk.


HOWARD: Couple of years ago, I was hiking near Cody, Wyoming. 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'd just been involved in an episode where a parent had threatened to sue - 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 - keep going with this. About the same time, she was going to take two students to a leadership conference in Laramie, which is a couple of hours away, and she was going to drive them in her car. But the school said no, you can't drive them in the car, for liability reasons. You have to go in a school bus. So they provided a bus that held 60 people and drove them - the three of them back and forth several hours to Laramie.

Her husband is also a science teacher and he takes a biology class on a hike in the nearby national park. But he was told he couldn't go on the hike this year because one of the students in the class was disabled. So the other 25 students didn't get to go on the hike either.

At the end of this day, I could have filled a book just with stories about law from this one teacher.

STEWART: We're talking with attorney Philip Howard about his TED Talk. And in your talk, you talk about how the culture has changed almost imperceptibly. How did that happen? How did we get here?

HOWARD: We were trained. We've been trained to be fearful of ordinary choices. Teachers are trained never to put an arm around a crying child because someone might say it was an unwanted touching and then your career is ruined.

And it's this creeping legalism of society, where everyone's so scared of being accused of doing something wrong or not complying, that a kind of self-consciousness has infected daily interaction. It's profoundly destructive of both social relationships and accomplishment.

STEWART: When was a time, then, it wasn't like this?

HOWARD: Well, throughout most of history it wasn't like this. People just did their jobs. The constitution was written 200 years ago. It's only 16 pages long. It's done a pretty good job, with 16 pages of general principles. Now we have new laws that are passed - like the Healthcare Bill or the Dodd-Frank Act - that are thousands of pages long because people feel the compulsion to try to lay out every detail.

There was a time at which, when a kid fell off a see-saw, no one would consider bringing a lawsuit. It was just an accident. Now, if a kid falls off a see-saw, you assume there will be a lawsuit. So it has changed over the last - really the last 30 years.

STEWART: Philip, let's go back to your TED Talk, where you offer up some ways to fix some of the problems with the legal system.


HOWARD: 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. We've been trained to think that the way to look at every dispute, every issue, is a matter of kind of individual rights. And so we peer through a legal microscope, hoping that we can judge any dispute against the standard of a perfect society, where everyone will agree what's fair and where accidents will be extinct. Risk will be no more.

Of course, this is utopia. It's a formula for paralysis, not freedom. It's not the basis of the rule of law; it's not the basis of a free society. You've got to judge law mainly by its effect on the broader society, not individual disputes. Absolutely vital.

STEWART: You go on in your talk, and it comes down to trust, in many ways - trust of the legal system, trust of legal professionals, trusts of judges to make the correct decisions. Talk to me a little bit more about how trust can fix the legal system.

HOWARD: Well, first, law doesn't work as a foundation for freedom unless people trust it. People need to trust the legal system to sort your reasonable behavior from unreasonable behavior or discriminatory behavior. So if you don't trust the legal system, you're going to go through the day with a little lawyer on your shoulders, whispering in your ears. And you're going to be very self-conscious and you're no longer going to act freely. You're going to act defensively.


HOWARD: Pretty soon, the doctor's saying, well, I doubt if that headache could be a tumor, but who would protect me if it were? So maybe I'll just order the MRI. Then you've wasted $200 billion in unnecessary tests.

If you make people self-conscious about their judgments, studies show you will make them make worse judgments. If you tell the pianist to think about how she's hitting the notes when she's playing the piece, she can't play the piece. Self-consciousness is the enemy of accomplishment.

Edison stated it best. He said, "Hell, we ain't got no rules around here. We're trying to accomplish something."

HOWARD: So how do you restore trust? You have to give authority to judges and officials and teachers and everyone to make judgments of reasonableness and unreasonableness. I mean, because ultimately trust is hinged to social norms. And so it doesn't mean you have to trust them completely. You can have checks and balances. You can have, in the case of courts, an appellate court to say, well, that was unfair or that was unreasonable.

But ultimately, someone has to make judgments of right and wrong. And if you create a system where no one has authority to make judgments -which is what we have done today, no one has authority to make judgments. The judges sit on their hands and let anybody sue for almost anything. The teachers let kids get away with just unbelievable disrespect and disorder. Then what happens is everyone's freedom corrodes.


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 down 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.

This is the hardest hurdle. It's actually not very hard. 98 percent of cases, it's a piece of cake. Maybe you've got a claim in small claims court for your loss, a pair of pants for $100, but not in a court of general jurisdiction for millions of dollars. Case dismissed without prejudice for re-filing in small claims court. Takes five minutes. That's it. Not that hard.

But it's a hard hurdle, because we got into this legal quicksand 'cause we woke up in the 1960s to all these really bad values: racism, gender discrimination, pollution. They were bad values and we wanted to create a legal system where no one could have bad values any - anymore.

The problem is we created a system where we eliminated the right to have good values. It doesn't mean that people in authority can do whatever they want. They're still bounded by legal goals and principles. The teacher is accountable to the principal; the judge is accountable to an appellate court; the president is accountable to voters. But the accountability is up the line, judging the decision against the effect on everybody, not just on the disgruntled person.

You can't run a society by the lowest common denominator.


STEWART: What one small change could be made?

HOWARD: One change would be to institutionalize the idea of sunset to all rules and regulations and laws. Not to get rid of them all, but to re-evaluate them in light of their consequences. So just the idea of not assuming that every law is like the Ten Commandments, except it's become the 10 million commandments, you know, but to actually say, well, is this law really working the way we intended it? Is it really being helpful? Or, in some ways, is it also being harmful?

That would be an enormous change in focus of the way we run our government and to make our society function sensibly again.

STEWART: Philip, let's hear how you wrap up your TED Talk.


HOWARD: So what's needed is a basic shift in philosophy. We can pull the plug on a lot of this stuff if we shift our philosophy. We've been taught that authority - 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, to maintain order, everybody'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.

STEWART: Philip Howard, thanks for joining us.

HOWARD: Thank you.

STEWART: Attorney Philip Howard. He's the author of the book "Life Without Lawyers" and founder of the nonpartisan group Common Good. You can find out more about Philip at our website. Go to ted.npr.org.

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