Monday, January 26, 2009
Philip K. Howard's column this morning on the many ways in which the law strips us of the power to help ourselves, and its applicability to the current crisis, is the must-read article of the day. He does not mention Bush-era corporate governance regulation, but the same point applies: In the name of guarding against a relatively rare event, we have destroyed the psychology of the people who need to decide and act every day to build our economy, our civil society, and our country.
TFA: Teachers lose their authority, Prof. Arum found, because the overhang of law causes "hesitation, doubt and weakening of conviction." Skyrocketing health-care costs are impossible to contain as long as doctors go through the day thinking about how they will defend themselves if a sick person sues.
Teachers lose their authority by destroying in their minds and those of their students the capacity to make judgments concerning what is culturally good and bad, instead viewing all as morally equivalent.
This article is awful short on specific fixes. We can all see the problem but until someone comes up with a coherent solution, the current method is still the best method. In aggregate the "legal sediment" may be bad but at the micro level, it's working fine. By that I do not mean perfect. A quick read of any newspaper can find a bad legal decision by a judge or jury. But most of the time, they get it right.
The result of what the author seems to be saying is less compensation for torts. The harm stays where it falls. But try telling a widow that a wrongful death judgement would generate negative externalities in excess of the social good of making her whole.
In short, give me a solution, not just point at a problem.
The problem is the lawyers who hawk all day on television... "trip over a sidewalk because you're in 8 inch heels on during an icestorm... sue! Stick your hands where they don't belong and get bitten... sue! Don't pay attention to what you're doing and pour hot coffee on yourself... sue!" and the judges who don't have the stones to call a bogus suit bogus and throw it out with maximum embarassment for the lawyer to brought the case before the bench.
Another problem... "expert witnesses", specifically Psychobabblists who are always ready to tell us why somebody doing something wrong wasn't "at fault" and being given the sheen of making sense by the very fact that they are testifying as an "expert".
Finally, the jury pool who has been infected by all this nonsense. The court room has become a slot machine every time anything bad happens to any one at any time for any reason, regardless of that person's complicity in the bad event. It's always about "who can I make pay for this" anymore.
Lawyers have pissed away any "integrity" that the practice of law might once have had, assuming that it wasn't just a myth to being with.