Law schools on both sides of the border are graduating more lawyers than ever before. What effect will the influx of lawyers have on the profession and on the litigation culture in the United States and Canada? Has litigation become America’s national sport? Has frivolous litigation reached crisis levels?

I spoke with Philip K. Howard, best-selling author of the new book, Life Without Lawyers: Liberating America from Too Much Law, to find answers to these questions, and to find out what can be done to bring common sense back into the courtroom.

Howard is himself a lawyer and legal reform activist; he is the founder and chair of Common Good, a “nonprofit, nonpartisan legal reform coalition dedicated to restoring common sense to America.” He also contributes to the New York Times and the Wall Street Journal.

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To begin our interview, I asked Howard what his motivation was for writing the book. He told me that he’s been thinking about this problem for over 15 years now. He comes from a city planning background, and was interested in the way social structures change the way people behave in their daily lives.

Since the beginning of the industrial revolution, Howard says, but especially since the 1960s, we’ve created legal structures that have skewed people’s choices and pushed aside common sense. People no longer have freedom in their daily choices.  A “legal self-consciousness” has descended upon society like a “heavy lead blanket,” stifling even simple choices that people make in their day to day life.  People go through the day thinking about self protection from litigation.

Interestingly, the problem is not in itself caused by too much litigation:

“Not that many people bring frivolous claims. When they do bring frivolous claims, they don’t generally win. But the trouble is that the system of justice allows people to bring those claims, and allows the plaintiffs to maintain them for years. The result is that nobody trusts justice. Because they don’t trust justice, they don’t feel free to do their jobs properly.”

The result, Howard says, of the legal self-consciousness is that health care costs more; kids aren’t allowed to go outside and play even in the midst of an obesity epidemic; teachers can’t maintain control of the classrooms; managers can’t be honest with their workers; and governments can’t toss out bureaucrats who aren’t doing their jobs because of iron-clad tenure and a fear of wrongful dismissal claims.

The legal self-consciousness has profoundly changed public schools in America. Howard explains that over 40% of high school teachers in America say that they spend at least half their time trying to maintain discipline, which means half their time isn’t spent teaching.  Teachers have lost control of the classroom, for fear that they’ll be “dragged through a hearing by an angry parent.”

According to a poll conducted by Common Good, 82% of teachers say they practice “defensive teaching” – their decisions are motivated by a desire to avoid legal challenges. The administration is paralyzed as well. This chart demonstrates the nightmare of bureaucratic hoops that an administrator must jump through in order to fire a teacher that everyone agrees is inept.

Health care has also been transformed. Over 90% of doctors say that they order tests that aren’t clinically needed, partly for fear of negligence claims.  It’s difficult to quantify these “defensive medicine costs,” but Howard says that they’re probably in the $100 billion dollar range, a figure that has been cited elsewhere. That doesn’t even take into account other inefficiencies. Howard points out that doctors are reluctant to communicate with their patients and suggest treatments for common maladies by email, because in 1 out of 100 cases, it would have been better to see the patient. Ultimately, people don’t get proper care because of fear of the few.

This, Howard says, is one of the overriding problems with American legal structures – they cater to the lowest common denominator, and “as a result, the common good is harmed.” A system that caters to everyone sounds good in theory, but in practice, it becomes over inclusive and can’t work when resources are scarce.

I asked Howard to what extent civil procedure rules play a role in creating these problems, since those can be reformed with relative ease.  Howard replied that the problem goes far beyond procedural rules. The roots extend much deeper into our legal philosophy.

For instance, there is a myth that the judiciary ought to be completely neutral, and must avoid making value judgments.

Howard argues that judges must be impartial, but that doesn’t mean they should be neutral; they should be much more assertive in the trial process. That’s because “the notion of letting everybody have their day in court has become letting everybody have their decade in court. It doesn’t matter whether the claim is valid or not.”

Law, he says, is not about avoiding value judgments. It’s about asserting them on behalf of society. When somebody sues for $54 million because they’ve lost a pair of pants, the court should be able to say, immediately, that “at best you’ve got a claim for $200 in small claims court. Case dismissed without prejudice to re-file in small claims.”

The pants case is an example of “process run amok.”

“When process is so neutral that judges sit on their hands and don’t make obvious value judgments that correspond to the reasonable values of the society around them, then justice basically favours whoever is in the wrong.”

A liable defendant can waste a court’s time advancing even the most absurd legal arguments ad infinitum all the way to the Supreme Court. Conversely, an “extortive plaintiff who thinks he can get a million dollars after finding a fly in the water” can pursue the claim for years, clogging up the system to the detriment of worthy plaintiffs that ought to get their just compensation.

Ultimately, Howard says that excessive neutrality fuels distrust in the judicial system, which in turn leads to paralysis and a loss of freedom.

Common Good conducted a survey which asked how many Americans would “trust the system of justice if someone brought a baseless claim against them.” Only 16% said they would trust the system. Freedom is lost because whenever people are dealing with others, they will have an overriding sense of caution – a fear of a claim being brought against them, whether it be legitimate or frivolous.

I also pondered to what extent law schools were to blame for the litigation culture. Howard agreed that law schools were certainly worthy of blame for pumping the system full of lawyers. More lawyers means more litigation. But he said they were also to blame for creating presumptions and frames of reference – “that people should be allowed to sue for anything and that’s the highest form of justice.”

I asked what Philip Howard thought of apology legislation, currently being touted in Ontario as a way to reduce litigation. His feeling was that apology legislation was a step in the right direction, but that the problem is so large that the impact will be minuscule.

The problem in America, he says, is not with doctors feeling like they will be found liable when they make a mistake and say sorry. It’s with doctors feeling like they’re going to be sued even when they’ve done nothing wrong at all.

Finally, I asked whether Howard had any specific solutions to help inject some common sense back into the legal system. His book is full of them, but he was willing to provide a couple of interesting examples.

For one, we no longer know what constitutes a “reasonable risk.” People have no guidance on whether their behaviour is reasonable, or else risky enough that it might draw litigation.  Howard proposes risk commissions that could set clear standards for what constitutes reasonable risk. Such commissions could be set up in a wide range of fields, from medicine, to discipline, to environmental protection.

The whole idea of providing social services as a matter of right, he says, also needs to be reconsidered:  where resources are scarce, we need to have officials with the authority to deny things in order to balance all interests. The problem with the current approach to social services, he says, is that it “encourages people to bang the table in order to get everything that they can just for themselves heedless of the effect on all others.”

Howard tells me that his organization, Common Good, has broad-based support for numerous proposals. He has built coalitions across the political spectrum for legal structural reform.

The appetite for change, he says, is definitely there.

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Life Without Lawyers, which hit the shelves today, has been called “2009’s most needed book on public affairs” by the Washington Post’s George Will. Stuart Taylor, of the National Journal Magazine, says that it “brims with insights into how ‘rights’ that were created to prevent ‘unfairness by those in authority’ are now ‘guaranteeing unfairness to the common good.'”

The book can be purchased here.