Imagining Life Without Lawyers

So what are we to do about all these lawyers? Philip K. Howard, founder of Common Good and author of "The Death of CommonSense," 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," Howard argues that we are 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 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 weep in shame: The D.C. judge who sued his drycleaner for $54 million for losing his pants; the teacher sued for repositioning a student's hands on a flute; schools that now ban running at recess; and the five-inch fishing lure with the three-pronged hook with a label cautioning "Harmful if swallowed." Howard paints a bleak picture of an America that is all "gray powerlessness;" a nation of citizens shuffling around in fear of litigation while municipalities tear down "dangerous" climbing structures and children comfort themselves with Double Stuf Oreos.

Howard's depiction of America as an ever-expanding nest of laws and regulations actually echoes criticism recently leveled by former Bush administration lawyer 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 warfare was smothered by overregulation; and the Bush administration found itself "strangled by law." His dismay over a pre-9/11 culture in which officials were too terrified of legal liability to act quickly or boldly, echoes Howard's picture of an America too scared of lawsuits to create, dream or build.

Oddly, Howard's 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" provides a perfect natural experiment in loosening the chokehold of law and allowing lawyers to take risks and think big.

In the wake of 9/11, the decision was made to be more "forward leaning," more imaginative and less risk averse, in the face of legal constraints on interrogation and eavesdropping. And with a series of memos declaring that the laws of war did not constrain the president, followed by more memos setting out new guidelines, a bold, if secret, new legal regime was born.

The question one wants to pose to Howard is whether the country was better off for its newfound legal freedom. Did America achieve any of the benefits he promises? Howard urges, for instance, that liberating ourselves from law and regulation leads to a flowering of creativity. But that doesn't seem to have occurred in the aftermath of 9/11. In fact, when the Bush administration shucked off the rules and regulations governing warfare, the resulting ideas were anything but brilliant or new. It was by cutting and pasting language from unrelated statutes authorizing health benefits, that government lawyers like John Yoo created new definitions of torture. Instead of exploring the best ways to update U.S. interrogation methods, we just pilfered ideas from Fox's "24."