Well, if Philip K. Howard, founder of Common Good and author of The Death of Common Sense, 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.