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If you haven't noticed, outspoken corporate lawyer, Philip K. Howard, has been littering the nation's op-ed pages lately in an ongoing effort to promote what may be "the most ill-timed, tone deaf polemic in recent memory," Life Without Lawyers: Liberating Americans From Too Much Law.  This is my response...      

There’s been an awful lot of grousing lately about President Obama’s federal budget and the recently signed stimulus package—provocative accusations of "promoting bad behavior," "mortgaging our children’s future," and the like. Ironically, the brunt of this rhetoric has been coming from the same anti-regulation zealots whose Wild West economic policies made such aggressive fiscal measures necessary in the first place.  It’s against this tumultuous backdrop that Philip K. Howard has decided to release perhaps the most ill-timed, tone deaf polemic in recent memory, Life Without Lawyers: Liberating Americans From Too Much Law.  

Howard, who is a lawyer himself, as well as a partner at the large corporate defense firm, Covington & Burling, has made a career of attacking corporate regulations and the civil jury system. His chief strategy: using inflammatory stereotypes about public protection laws and attorneys for the injured to deflect attention from the misdeeds of those he defends.

But what makes Howard’s latest attempt so especially audacious is that it comes at a time of unprecedented corporate misconduct—none of which he chooses to acknowledge. Thus, in the age of Enron, Worldcom, poisonous peanut butter, Vioxx, Bernie Madoff, and a devastating Wall Street Meltdown (to name but a few of the nation’s recent scandals), Howard premises his book on a fairy tale America he claims has been "overlegalized."

In schoolyard terms, according to Howard, Americans have become a bunch of rule-following wusses, more concerned with staying out of trouble than "doing what’s right." The antidote? Tearing off the shackles of wussiness by doing away with rules, regulations, and most importantly, those pesky plaintiffs’ attorneys who might be inclined to enforce them.

Of course, if Howard’s Utopian vision sounds too good to be true that’s because it is. Carried to its logical conclusion, we might just as well do away with the criminal justice system and simply allow would-be criminals the "freedom" to start doing what they think is "right" too.

But not even Howard would go that far. His interest is clearly in protecting the wrongdoers who are business professionals, not the less polished kind. To that end, he barely masks his disdain for those most in need of legal protection.

Workplace discrimination lawsuits should be prohibited, says Howard, unless the employer discriminated against minorities as a group, not just against an individual.  That’s because in Howard’s world, allowing single plaintiff suits might result in a "chilled" work environment that would stifle "open interaction" between the races. Apparently, for Howard, it isn’t racism, but lawsuits that create society’s obstacles to "real integration."

As for sexual harassment claims?  Barring some overt form of "quid pro quo," (presumably a promotion conditioned on a sexual favor would qualify) Howard would prohibit those too. If "just offensive comments," are at issue, says Howard, women should simply embrace the laws of the locker room and get over it. The alternative, he says, would kill "the spontaneity needed" for a "healthy" work environment.

But Howard’s twisted worldview aside—in reality, society benefits in countless ways as a result of lawsuits and laws. Among other things, they prevent future injuries by removing dangerous products and practices from the marketplace; they help spur safety innovation; they educate the public to certain acute dangers; and they provide an evenhanded way to compensate those made sick or injured through the recklessness and wrongdoing of others.

Ultimately, the founding fathers handed down government regulations and the American civil justice system for a reason: to foster public trust and safety, and to protect everyday citizens from bullies with too much power and too little capacity for human decency. They understood that America needed more than a free market economy to ensure "liberty and justice for all" because sadly, not every American is fully invested in that concept.

If Howard truly cares about the welfare of his country, and not just the make believe one he writes about in his book, he would do well to knock off the deception, pick up a newspaper, and read about the myriad of ways those who share his deluded world view have wrought havoc in people’s lives—then apologize.

Originally posted to Andy Hoffman on Wed Apr 08, 2009 at 10:51 AM PDT.

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