Legal uncertainty affects daily choices in a wide variety of realms, from education to playground safety, healthcare, and government services. Excessive litigation affects policy choices diminishing the quality of life for average Americans from all strata of society. Philip K. Howard has been writing about the issue for twenty years. On September 22, at a lunchtime roundtable hosted by the Justice and Society Program, he was interviewed by Stuart Taylor, Jr., Contributing Editor, Newsweek and National Journal. Howard, author of The Death of Common Sense: How Law is Suffocating America and Life Without Lawyers: Liberating Americans from Too Much Law, is a law partner at Covington & Burling.

In a lively discussion with roundtable participants, he argued that judgment and common sense has taken a back seat to legal process in a host of areas. Among his examples: teachers cannot remove a disruptive student from the classroom, or even place a comforting arm on a crying child; the slide disappears from playgrounds in a city after an unfortunate accident; a litigant is able to prolong a 54 million dollar lawsuit against a drycleaner for a pair of lost pants. Howard argues that part of the problem is the reluctance of judges to rule on cases as a matter of law, instead submitting too many cases to juries or prolonging them until settlement becomes the only economically feasible option. He also argues that the regulatory system is a one-way ratchet, accreting successive layers that choke innovation and burden incoming regulators with the decisions of their predecessors.  

The Justice and Society Program roundtable series brings together experts from across the political spectrum for respectful value-based discussion on up-to-the moment issues of law and public policy. Upcoming programs will consider civics education in America, and planning for a series on the Constitution in the 21st Century is underway.