always been interested in relationship of formal structures and human behavior if you build a wide road out to the outskirts of town people will move there
is also a powerful driver of human behavior and what i'd like to discuss today
is the need to overhaul and simplify the law to release the energy and passion of americans so that we can begin to address the challenges of our society
you might have noticed that law has grown progressively denser in your lives over the last decade or two if you run a business it's
you need a lawyer to run the company because there is so much law but it's not just business that's affected by this it's actually pressed down into the daily
our guide was a local science teacher she was wholey unconcerned about the bears but she was terrified of lawyers the story started pouring out
just been involved in an episode where a parent had threatened to sue the school because she lowered the grade of the student by ten percent when he turned the paper in late
the principle didn't want to stand up to the parent because he didn't want to get dragged into some legal proceedings so she had to go to meeting after meeting same arguments made over and over again after thirty days of sleepless nights she finally capitulated
and raised the grade she said life is too short i just can't keep going with this about the same time she was going to take two students to a leadership conference
in laramie which is a couple of hours away and she was going to drive them in her car
the school said no you can't drive them in the car for liability reasons you have to go in a school bus so the provided a bus that held sixty people
three of them back and forth several hours to laramie her husband is also a science teacher and he takes his biology class on a hike in the nearby national park
but he was told he couldn't go on the hike this year because one of the students in the class was disabled so the other twenty five students didn't get to go on the hike
either at the end of this day i could have filled a book just with stories about law from this one teacher
now we've been taught to believe that law is the foundation of freedom but somehow or another in the last couple of decades the land of the free has become a legal minefield
it's really changed our lives in ways that are sort of imperceptible and yet when you pull back you see it all the time it's changed the way we talk
i was talking to a pediatrician friend in north carolina he said well you know i don't deal with patients the same way anymore
you wouldn't want to say something off the cuff that might be used against you
this is a doctor whose life is
caring for people my own law firm has a list of questions that i'm not allowed to ask when interviewing candidates
such as the sinister question bulging with hidden motives and innuendo where are you from
now for twenty years
tort reformers have been sounding the alarm that lawsuits are out of control and we read every once in while about these crazy lawsuits like the guy in the district of columbia who sued his dry cleaners for fifty four million dollars
rare they don't usually
and the total of direct tort cost in this country is about two percent which is twice as much as in other countries but as taxes go hardly crippling but
the direct costs are really only the tip of the iceberg what's happened here again almost without our knowing is
our culture has changed
people no longer feel free to act on their best judgment so what do we do about it we certainly don't want to give up the rights when people do something wrong to
seek redress in the courts we need regulation to make sure people don't pollute and such we lack even a vocabulary to deal with this problem
and that's because we have the wrong frame of reference we've been trained to think that the way to look at every dispute every issue is a matter of kind of individual rights and so we peer through a legal microscope
and look at everything is it possible that there are extenuating circumstances that explain why johnny turned his paper in late
always a different scenario that you can sketch out where it's possible that something could have been done differently and yet we've been trained to squint into this legal microscope
hoping that we can judge any dispute against the standard of a perfect society where everyone will agree what's fair and where accidents will be extinct
risk will be no more
of course this is utopia
it's a formula for paralysis not freedom it's not the basis of the rule of law it's not the basis of a free society
so now i have the first of four propositions i'm going to leave with you about how you simplify the law
you've got to judge law mainly by its effect on the broader society not individual disputes absolutely vital
so let 's pull back from the anecdote for a second and look at our society from high above is it working what will the macro data show us
well the healthcare system has been transformed
a culture pervaded with defensiveness universaldistrust of the system of justice universal practice of defensive medicine it's very hard to measure because there are mixed motives doctors can make more on
by the institute of medicine and others turns out that's not the case the fear has chilled professional interaction so thousands of tragic
as we saw with the teacher in cody wyoming she seems to be affected by the law
well it turns out the schools are literally drowning in law you could have a separate section of a law library around each of the following legal concepts due process special education no child left behind
zero tolerance work rules it goes on we did a study of all the rules that affect one school in new york the board of ed had no idea
tens of thousands of discreet rules sixty steps to suspend a student from school it's a formula for paralysis what's the effect of that one
is a decline in order
again studies have shown it's directly attributable to the rise of due process public agenda did a survey for us a couple of years ago
where they found that forty three percent of the high school teachers in america say that they spend at least half of their time maintaining order in the classroom
that means those students are getting half the learning they're supposed to because if one child is disrupting the class no one can learn
and what happens when the teacher tries to assert order they're threatened with a legal claim we also surveyed that
seventy eight percent of the middle and high school teachers in america have been threatened by their students with violating your rights with lawsuits by their students they are threatening their student
it's not that they usually sue it's not that they would win but it's an indication of the corrosion of authority
doesn't seem to be working very well does it neither in sacramento nor
no reason europe or china should have the fastest trains
well actually there is a reason environmental review has evolved into a process of no pebble left unturned
for any major projecttaking the better part of a decade then followed by years of litigation by anybody who doesn't like the project
then just staying above the earth for one more second people are acting like idiots
a couple of years ago broward county florida banned running at recess
see all these labels contents are extremely hot they'll think it was some kind of aphrodisiac that's the only explanation because why would you have to tell people that something was actually hot my favorite
was one on a five inch fishing lure i grew up in the south
none of these people are doing what they think is right and why not they don't trust the law why don't they trust the law because it gives us the worst of both worlds it's random
in the areas that are regulated there are so many rules no human could possibly know
well how do you fix it we could spend ten thousand
but the challenge here is not one of just amending the law because the hurdle for success is trust
people for law to be the platform for freedom people have to trust it
so that's my second proposition trust is an essential condition to a free society
but law is different than other kinds of uncertainties because it carries with it the power of state and so the state can come in it actually changes the way people think
that dark deep well of the subconscious where instincts and experience and all the other factors of creativity and good judgment are
it drives us to the thin veneer of conscious logic pretty soon the doctor is saying well i doubt if that headache could be a tumor but who would protect me if it were so maybe i'll just order the mri so then you've wasted two hundred billion dollars in unnecessary tests
if you make people self conscious about their judgments studies show you will make them make worse judgments if you tell the
to think about how she's hitting the notes when she's playing the piece she can't play the
self consciousness is the enemy of accomplishment edison
stated it best he said hell we ain't got no rules around here we're trying to accomplish something
so how do you restore trust tweaking the law is clearly not good enough and tort reform which is a great idea lowers your cost if you're a business person
but it's like a band aid on this gaping wound of distrust states with extensive tort reform still suffer all these pathologies so what's needed is not just to limit claims but actually create a dry ground of freedom it turns out
boundaries
and on one side of those boundaries are all the things you can't do or must do
you can't steal you've got to pay your taxes but those same boundaries are supposed to define and protect a dry ground of freedom isaiah berlin put it this way
sets frontiers not artificially drawn within which men shall be inviolable
people wade through law all day long
so what's needed now is to rebuild these boundaries
and it's especially important to rebuild them for lawsuits because what people can sue for
no one will want to take the risk of a lawsuit and that's what's happened there are no seesaws jungle gyms merry go rounds climbing ropes nothing that would interest a kid over the age of four because there is no risk associated with it so how do we rebuild it life is too complex
choices involve value judgments and social norms not objective facts and so here is the fourth proposition
this is what we have the philosophy we have to change to and there are two essential elements of it we have to simplify the law
we have to migrate from all this complexity towards general principles and goals the constitution is only sixteen pages long worked pretty well for two hundred years
law has to be simple enough so that people can internalize it in their daily choices if they can't internalize it they won 't trust it
and how do you make it simple because life is complex and here is the hardest and biggest change we have to restore the authority to judges and officials to interpret and apply the law
we have to rehumanize the law
to make law simple so that you feel free the people in charge have to be free to use their judgment to interpret and apply the law in accord with reasonable social norms
as you're going down and walking down the sidewalk during the day you have to think that if there is a dispute there is somebody in society who sees it as their job
to affirmatively protect you if you are acting reasonably
that person doesn't exist today
this is the hardest hurdle
in small claims court takes five minutes that's it it's not that hard but it's a hard hurdle because we got into this legal quicksand
where no one could have bad values anymore the problem is we created a system where we eliminated the right
doesn't mean that people in authority can do whatever they want they are still bounded by legal goals and principles the teacher is accountable to the
the judge is accountable to an appellate court the president is accountable to voters but the accountabilities up the line
judging the decision against the effect on everybody not just on the disgruntled person you can't run a society by the lowest common denominator
what's needed is a basic shift in philosophy we can pull the plug on a lot of this stuff if we shift our philosophy we've been taught that authority is the enemy of freedom it's not true authority in fact is essential to freedom
law is a human institutionresponsibility is a human institution if teachers don't have authority to run the classroom to maintain order everybody 's learning suffers
if the judge doesn't have the authority to toss out unreasonable claims then all of us go through the day looking over our shoulders if the environmental agency can't decide that the power lines
are good for the environment then there is no way to bring the power from the windfarms to the city a free society requires red lights and green lights
look around so what the world needs now
is to restore the authority to make common choices it's the only way to get our freedom back
and it's the only way to release the energy and passion needed so that we can meet the challenges of our time
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