A BOOK REVIEW: "LIFE WITHOUT LAWYERS"
<<<Following is a book review of a very significant book that I would hope all people of the "right" would read. I did it for a friend in Florida, but thought some of you here would enjoy it. While the author tries to be politically neutral, the book IMHO explains much of what is wrong with America today.>>>.
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Ted,
I recently finished "Life Without Lawyers" by Philllip Howard and found it to be one of the most interesting thought-provoking books I have ever read. I would buy and send it to you....except I have learned from the past that when I do that the recipient will treat it as medicine - like an arduous task - and will put it off in the corner for when they have "time" to read it.
The title is deceptive. Yes, it is about lawyers and by a lawyer, and yes it does cover things like silly lawsuits like that cup of spilled hot coffee.
On that topic he gives the example of the City that had a park surrounding a lake with a pleasant beach. There already had been signs prohibiting swimming and warning of the risks, but some kid dove too shallowly onto a rock and broke his neck. A losing lawsuit caused the City to dump mud and slime onto the beach to make swimming unpleasant!
In the Law, liability is usually a function of the forseeability of risk. But risk, by definition, is a question of trade-offs and odds - accepting or rejecting one set of risks in order to accomplish something. But there are real tradeoffs: you can build a car for maximum safety but it will necessarily have maximum weight and fuel consumption. Playgrounds across the country are so boring that according to many experts (and non-experts such as myself) no child over the age of 4 wants to go to them. Merry-go-rounds, high slides, climbing ropes, even seesaws, are history. Dodgeball is gone and tag is on its way out. Voila, surprise, we have an epidemic of childhood obesity.
The plain fact is that for children nothing is more fun than risk. And as the author points out: children's brains do not fully develop in the absence of risk, without the excitement and challenge of risk. Nor - because they are told to avoid "strangers" - do they learn how to make judgments about
adults. If a child really is in danger - from a bully or being followed by a stranger - the safest thing the child can do is ask a stranger for help. We are growing a country of wimps. "Early development determines which neurons are to be used and which will die....whether the child will be brilliant or dull, confident or fearful, articulate or tongue-tied...Brain development is a use it or lose it process."
Howard also attacks what he calls the institutionalizing of individual rights, like for example in special education. The modern rights regime, by giving legal rights, ( enforceable in court) to some individuals and groups institutionalizes faction. " It brings out the worst in human nature. An essential truth of public choices: all legitimate interests in a society conflict. These conflicts cannot be resolved by laws and courts. Health care, schools, the environment, to name three, are effectively joint goods. They require constant choices, taking into account scarce resources and other circumstances. Making these choices through inflexible laws is highly inefficient .... and unfair. "Liberty for the wolves is death to the lambs" as Isiah Berlin put it.
BUREAUCRACIES... LIKE KUDZU
Most Americans, remembering their own experiences, can't imagine how bureaucratic and bad the cultures of most schools (public) have become. And the sad fact is (these are from a WSJ editorial) once a school develops a bad culture (adduced from statistics demonstrating poor performance) it is almost impossible for that school to recover NO MATTER how much money is thrown at it. (Fact: the very worst performing school district in the country, Washington D.C., spends more money per capita on its students than any other.) And it's a fair premise - though not explicitly set forth in the book - that the worst schools are the ones with the most bureaucracy and the most mindless rules.
What Howard does argue is that children learn far less from bad teachers than good teachers. When it's all but impossible to fire bad teachers, this adversely affects good teachers. "Due process" requirements imposed by the courts on the process of disciplining a disruptive student tends to break down discipline in the class. Disruptive behavior by one student effectively destroys the ability of the other 29 to focus on the lesson. Learning becomes impossible and even the best teacher can't compete.
As Thomas Hobbes argued, no society, no enterprise, can succeed where disorder is the norm. In public schools with poor cultures, disorder is endemic. But it is NOT in parochial and charter schools in even the worst inner-city neighborhoods. There is one clear difference: Teachers in those schools have on their OWN authority the power to enforce values of common civility. By contrast, discipline in public schools has been bureaucratized.
"Culture is deceptively powerful because it operates mainly in undercurrents of social interaction..." Like a strong tide, the culture pushes people toward behaving in a certain way. "Good school cultures bring out the best in both teachers and students." Unspoken is that the converse is likewise true.
Public schools shrink from the very idea of "imposing" values. But Emile Durkheim said, the socialization of youth is at least as important a goal for schools as reading and arithmetic. They should be the place where children learn appropriate behavior, values and interpersonal skill. 'All through life you need to be respectful and honest, you need to have integrity and character, whether you end up driving a truck or being a doctor.'
'Reformers of public schools don't focus on school culture. Cultures are too complex, without objective metrics; the idea to them of building a culture seems both presumptuous (whose values are being asserted?) and futile.' So reformers necessarily fall back on fixed rules and bureaucracy.
But there are drawbacks to fixed rules. To fight anarchy in public schools the "zero tolerance" rule for weapons was imposed. 'One principal had to suspend a first-grade girl, because when the students were asked to bring in their favorite possessions, she brought the small penknife given to her by her grandfather. That'll teach her...what? That schools don't care about right and wrong?'
LEADERSHIP AND THE POWER TO JUDGE OTHER PEOPLE
This is the most powerful part of the book.
'Welcome to public employment in America. There is no accountability in America's government service or public schools. This is not a secret. Due process civil service protections and union contracts put public employees in a "virtually impregnable position.” Whether you perform well or you perform poorly, you are treated the same.
The downside: When an organization tolerates employees who aren't perceived to be pulling their weight, the entire culture is dragged down. Studies find that there is a precipitous decline in teammate contributions when a single individual rides free. "One bad apple can spoil the barrel." 'For the employee, maybe especially for the good ones, life within these agencies can be awful. Just cling on to a few rules and entitlements, and drift along for 30 years. For your pension. 30 years must seem like 30 lifetimes.' The Merit System etc., only provides cover for bad workers to inflict their failure on society as a whole
This brings the author to what I consider the heart and soul of the book: the effect on the leadership of this country. It doesn't matter much whom we elect - Republican or Democrat - if they don't have the ultimate authority over the competence of those government officials and employees actually delivering the services government is SUPPPOSED to provide.
Howard argues that the Law can and should protect against group abuses, for instance, racial prejudice, but should not be able to resolve individual disagreements in the workplace.
A remarkably wide range of SUBJECTIVE qualities go into distinguishing a good from a bad employee: temperament, habit, demeanor, bearing, manner, maturity, drive, leadership ability, personal appearance, stability, cooperativeness, dependability, adaptability, industry, work habits, attitude and interest in the job. All are impossible to measure and all but impossible to intelligently articulate. According to Howard (and I agree with him fully) American leaders, elected and appointed, should be able without court challenge to fire workers on the basis of subjective assessments like these.
Legal proceedings can't possibly capture concepts like character or caring. Even scientists know little about how we judge other people. It's like a "black box." But we know that judgments aren't random. "Studies show that diverse groups of people, asked to watch a panel of different people talking tend to trust and distrust the same ones.' "People imagine they communicate their virtue or vice only by overt action and do not see that virtue and vice emit a breath every moment." (Emerson)
Most great leaders, including Washington, Lincoln etc., were said to have been a "good judge of character." There's a huge library of human wisdom through the ages (concerning virtue and character) - by Aristotle, Confucius, Shakespeare, Hume, almost everyone we respect - about virtue, character and other personal traits. All this wisdom is basically wasted if our leaders aren't free to make judgments about other people.
Howard argues civil service and teacher protections should largely be scrapped. He quotes Milton Friedman: "We have gradually developed governmental institutions in which the people effectively have no voice." That's mainly, says Howard because officials themselves have no voice. "Democracy is paralyzed by its own inflexible laws and rules. Responsibility died through a form of democratic suicide - instead of self-immolation, it's self-immobilization." There are lots of good people in government, he says. But they work in a culture that has lost its capacity to take responsibility.
We lack leaders because we've basically made leadership unlawful. We as a society find it unpalatable to give a leader authority to make choices that affect other people. Forty years of experience with this new system leads Howard to conclude that it has been a bad bargain. "The goal was to protect against unfair authority, but the effect was to preclude fair authority. As an unintended part of the bargain, we lost much of our freedom." "Right and wrong can't be programmed or proved. It's always a matter of personal judgment.
MY PERSONAL TAKE
I believe this book makes clear a great deal about what is wrong with American society. On the city, state, and federal level, we lack real leaders. The people we now elect to positions of authority no longer feel free to exercise leadership. Where once these people could gain prestige, and even fame, in doing good for their communities now expect that they can accomplish nothing. It was inevitable that over time, this sense of powerlessness would lead them to redirect their energies to personal, selfish ends.
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