NewTalk http://newtalk.org/ Where experts discuss America's toughest issues en Copyright 2013 Wed, 05 Jun 2013 10:00:00 -0500 http://www.sixapart.com/movabletype/ http://www.rssboard.org/rss-specification Risk and Legal Fear in Schools A New Hampshire school district bans dodgeball. A Georgia school sends a kindergartener off in handcuffs. A Florida high school is shut down when a student brings in a mercury thermometer. Across the country, schools and school districts are overreacting to risk—often to the detriment of children’s education.

We entrust our children to teachers and principals with the expectation that they will be both educated and protected from harm. When, inevitably, incidents happen—especially when those incidents are tragic and well-publicized—communities often press for stricter rules and procedures. School administrations have reacted to the shooting at Sandy Hook Elementary School with extreme protectiveness; one school suspended a six-year-old for “pointing his finger like a gun and saying ‘pow,’” while another suspended two boys for playing cops and robbers.

In addition to protecting children from harm, schools also look to protect themselves from lawsuits, which a study by Public Agenda labeled a “perpetual fear” that influence teacher and principal decision-making. To shield themselves from legal exposure, schools have attempted to eliminate every conceivable risk—no tire swings, no dodgeball, no monkey bars. Field trips require complex liability waivers. Teachers can’t be left alone with students. Every activity requires paperwork—documentation, permissions, waivers.

Administrators’ authority has been diminished by an increased reliance on police to handle disciplinary matters as well as by restrictive policies, often imposed by state legislatures, that create an illusion of safety but prevent schools from making sensible disciplinary decisions.

Schools’ reaction to parents’ and the public’s decreasing tolerance for risk (and the possibility of litigation) has cultural, legislative, and regulatory dimensions. Red tape and legal fear have soured the student-teacher relationship and, with the increasing number of safety protocols and removal of outside-the-classroom activities, have made our schools less welcoming and engaging. The loss of teacher and principal authority in disciplinary matters has made it more difficult to maintain supportive and orderly learning environments, and unnecessary suspensions and expulsions cost students irreplaceable learning time and may create snowballing disciplinary problems.

Our schools should be safe, but are the steps we take in response to threats at the extremes—everyday playground accidents on one end, school shootings at the other—doing more harm than good? Is it possible to address risk and legal fear in a more balanced, less red-tape-intense way? In this forum, we’re inviting experts to consider these questions. Specific discussion topics may include:

  •  What level of risk is reasonable in a school environment?
  •  Are lawsuits really prevalent enough to justify defensive measures taken by schools and teachers? Or is their perception of legal risk exaggerated?
  • Do zero-tolerance policies lead to counterproductive disciplinary action?
  • Should judges take a more active role in setting the boundaries of reasonable risk in schools?
  • When should waivers be required?
  • Do we need to encourage a cultural change against risk obsession?  If so, what role should principals, teachers, and parents play in this process?

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A New Hampshire school district bans dodgeball. A Georgia school sends a kindergartener off in handcuffs. A Florida high school is shut down when a student brings in a mercury thermometer. Across the country, schools and school districts are overreacting to risk—often to the detriment of children’s education.

We entrust our children to teachers and principals with the expectation that they will be both educated and protected from harm. When, inevitably, incidents happen—especially when those incidents are tragic and well-publicized—communities often press for stricter rules and procedures. School administrations have reacted to the shooting at Sandy Hook Elementary School with extreme protectiveness; one school suspended a six-year-old for “pointing his finger like a gun and saying ‘pow,’” while another suspended two boys for playing cops and robbers.

In addition to protecting children from harm, schools also look to protect themselves from lawsuits, which a study by Public Agenda labeled a “perpetual fear” that influence teacher and principal decision-making. To shield themselves from legal exposure, schools have attempted to eliminate every conceivable risk—no tire swings, no dodgeball, no monkey bars. Field trips require complex liability waivers. Teachers can’t be left alone with students. Every activity requires paperwork—documentation, permissions, waivers.

Administrators’ authority has been diminished by an increased reliance on police to handle disciplinary matters as well as by restrictive policies, often imposed by state legislatures, that create an illusion of safety but prevent schools from making sensible disciplinary decisions.

Schools’ reaction to parents’ and the public’s decreasing tolerance for risk (and the possibility of litigation) has cultural, legislative, and regulatory dimensions. Red tape and legal fear have soured the student-teacher relationship and, with the increasing number of safety protocols and removal of outside-the-classroom activities, have made our schools less welcoming and engaging. The loss of teacher and principal authority in disciplinary matters has made it more difficult to maintain supportive and orderly learning environments, and unnecessary suspensions and expulsions cost students irreplaceable learning time and may create snowballing disciplinary problems.

Our schools should be safe, but are the steps we take in response to threats at the extremes—everyday playground accidents on one end, school shootings at the other—doing more harm than good? Is it possible to address risk and legal fear in a more balanced, less red-tape-intense way? In this forum, we’re inviting experts to consider these questions. Specific discussion topics may include:

  •  What level of risk is reasonable in a school environment?
  •  Are lawsuits really prevalent enough to justify defensive measures taken by schools and teachers? Or is their perception of legal risk exaggerated?
  • Do zero-tolerance policies lead to counterproductive disciplinary action?
  • Should judges take a more active role in setting the boundaries of reasonable risk in schools?
  • When should waivers be required?
  • Do we need to encourage a cultural change against risk obsession?  If so, what role should principals, teachers, and parents play in this process?
]]>Lenore Skenazy Lessons from Sandy Hook

The worst massacre at a school did not happen last year at Sandy Hook Elementary. It happened in 1927, in Bath Township, Michigan. A disgruntled (to say the least) school board member didn't want to pay any more school construction taxes. In protest, he blew up the school, his car, himself, four other adults--and 38 school kids.

Almost double the number at Sandy Hook.

Afterward, do you know what precautions schools all around the country immediately took?

None. Because administrators, politicians and parents did not see the tragedy as part of a huge new threat. They saw it for what it was: A bizarre anomaly. They understood that, for the most part, kids were still very safe at school.

That's a kind of perspective we have lost, in an era when we've been trained to automatically think these two thoughts:

1 - If anything bad happens to any child, anywhere, it is likely to happen to my kid, tomorrow.

2 - If we are proactive to the point of paranoid, we can achieve 100% safety.

The result has been a rash of excessive, expensive and sometimes exasperating new measures designed to make schools safer...that don't. My favorite is the reading specialist who told me that ever since Sandy Hook, when she goes to a classroom to help out, the door is always locked. As she is not trusted with a key, she has to knock on the door. But before the teacher WHO KNOWS HER can open it, the reading lady has to say the secret password.

Is it "Security Theater"?

Actually, I have one other favorite. There's a school in rural Oregon that has taught its teachers: If you ever hear a fire alarm but don't feel any heat, lock the kids in your room, because it COULD be a madman trying to lure kids into the hall.

Frankly, if I was a madman and I knew that school's M.O., I'd set fire to the building.

The problem is that when people are afraid, they can't think straight. And in an era when we are encouraged by the media and our lawmakers to be constantly fearful and tearful -- "Could your school be NEXT?" -- we are stuck in panic mode. We throw everything we've got at the problem, without even realizing...it's not a problem.

The job for those of us still thinking rationally, then, is simple. We must help parents, principals and politicians re-gain that old-fashioned, 1927 perspective that understood: Sometimes bad things happen, but that doesn't mean all kids are in constant danger. What's more, over-the-top security measures don't even make them safer, in part because madmen work around obstacles, but also in great part because the kids are already very safe.

Just not 100% safe.

And I now open the floor to anyone who has a good idea how to load this into the public's psyche.

]]> Frederick Hess We Need to Keep Things in Perspective

The cult of caution has gone too far.  It’s not just schools. Our litigious society is rife with examples of over-the-top efforts to defend against liability and lawsuits.  But schools are especially susceptible. First, they’re public institutions.  School board members, superintendents, and state officials know they can catch grief for a single unfortunate incident, so they have enormous incentive to do everything they can to prevent those while underestimating the costs in terms of time, money, and focus.  Second, we want to protect kids from bad things.

Consider President Obama’s response to Sandy Hook. After any tragedy, there’s a natural desire to order educators to ramp up the safety quotient - without much regard for distractions or tradeoffs.  Each mandate is reasonable enough, but the cumulative result is that each requires little slivers of training, time, money, and paperwork from teachers and school staff. Everyone then bemoans the fact that too many schools and teachers need to develop more of a laser focus on student achievement. 

The President proposed to train 14,000 school officials and law enforcement officers in how to handle active shooter situations. Here's the dilemma: a dollop of training is unlikely to make any difference in the rare event of a school shooter, while more time means focusing on a scenario with lightning-strike likelihood rather than things that are more likely to save or improve lots of lives every day.

Similarly, the president wanted to require that schools receiving federal funds for safety develop and practice emergency plans. While more than 80% of schools already have response plans for a shooting, the White House lamented that only 52 percent had drilled their students in the past year. Though these drills may be a nice idea, they can also create chaos, breed mischief, disrupt carefully planned lessons, and consume a half-hour or more of instructional time. For all that, the likelihood that any given school will ever employ its plan is infinitesimal, and the odds that anything short of routine practice will actually result in saved lives is modest at best.

The president proposed a tiny smattering of dollars, $15 million, to fund "mental health first aid" training for teachers and others who work with youths to detect signs of mental illness (the money was almost entirely symbolic--perhaps $150 for each of the nation's schools.)  Educators would likely get a few hours of desultory training, just enough to waste their time without making a difference. Or, if they actually got the requisite training and support (with the $150 per school!), the time spent would likely come at the expense of the time they have to prepare instruction, craft assessments, monitor student learning, and so forth.

Protecting kids from bad stuff is important. But it’s also important to recognize that these protections steal time and energy from teaching and learning.  And, for the vast majority of children, the biggest danger is not some dramatic incident but the silent, invisible threat of a mediocre education.

]]> Nancy McDermott Prioritize Informal Relationships

The most important point we need to understand about the fearful climate in our schools is that is does not originate with parents or the public. It is a by-product of the decline of informal relationships between people in the schools and people in communities they serve.

Informal relationships are those hundreds of sustained, casual interactions between teachers and students, parents and local schools for which there is no guidance, policy or code of conduct. They may seem trivial, but over time they create just enough mutual familiarity and confidence for people to set aside their emotional response to risk (any is too great) in favor of a more reasonable approach.  Without these relationships, cooperation and trust is impossible.

This erosion of informality is occurring in many areas of social life but has accelerated in schools partly because of the way education is now seen as a therapeutic tool for meeting social policy objectives and partly as a consequence of the new levels of bureaucracy that come with school reform. 

Over the past 30 years the scope of education has expanded beyond traditional subject matters into areas like sex education, character education and self-esteem. By attempting to teach what children really only learn over time and in context, schools have made students, teachers and their parents, hyper-aware and even paranoid about how they conduct interpersonal relationships. School administrators who intervene to prevent children making “best friends” are a sad example of how this over-think makes authentic relationships more difficult and actually pathologizes them. 

The process of reform has exacerbated the problem by making schools less accountable to their local communities and more beholden to state and federal authorities. Tax levies seldom raise enough to fund annual budgets. As a result, school districts are forced to cobble together the remainder of their funding from a combination of state aid, entitlement and competitive grants like Race To The Top. Each source of funding brings a new set of requirement for schools: requirements for measuring and reporting progress; codes of conduct that must be followed; targets and outcomes that must be achieved. Principals, teachers and administrators are left with little discretion and expected to follow procedure rather than use their judgment or initiative. In this context, parental concerns become largely irrelevant. 

This juridification of experience at every level of our schools is profoundly demoralizing. Simple disciplinary matters tend to escalate beyond all reason. That children are now regularly suspended from school for possessing guns the size of toothpicks is testament to institutionalized mistrust that has taken on a life of its own. 

Informal relationships have not gone away and they are still incredibly important. This is why the actions of a few motivated principals, teachers or groups of parents can make such a positive impact in individual cases. But they are under pressure and will need to be nurtured to survive. The challenge for policy makers is that they may of necessity have no positive role to play.

]]> Megan Rosker Freedom to Play

Our country was founded on the common credence of "life, liberty and the pursuit of happiness". These words were to be our guiding principle as our country evolved.  Now, in its adolescent years, our country has fallen victim to over-regulation.  I am a mother, a teacher, a play advocate and a writer.  I get concerned when I see our children’s freedom continuously imposed upon by the regulations of heavy handed government and school officials. 

Children should be freely engaging in dodgeball and kickball.  They should be recklessly playing cowboys and hanging upside down from the monkey bars.  These activities guide children to explore the world, learn personal and social boundaries and teach important physical developmental skills.  However, such activities are deemed too dangerous. To help our children "survive" we have imposed thousands of regulations on teachers and students.

Just because our children are too young to fight for their right of expression, doesn’t mean they don’t have as much of a right to express themselves as adults.  The number one way children express themselves is through play.  Unlike adults who can hold discussions and work out ideas and problems through a variety of different thought processes and procedures, children really only have one means of expression, play. When we take this away from them, we impede the most natural way in which they interact with the world. Play is truly unique to children and must be understood as something sacred to a child, not an extracurricular act that can be discarded when deemed too dangerous.  Play engages every part of a child creative, psychological and emotional being.  It is imperative to healthy childhood development.

Play naturally encourages risk.  When we take it away we aren’t allowing for a healthy amount of risk.  On my own Freedom to Play Scale of one to ten, where one is the Play Gestapo and ten is complete anarchy, schools should be functioning at a seven.  This means there are rules to keep children safe, but there is still plenty of exploration too. 

Adults have laws to keep ourselves safe as well. We don’t allow theft, rape or murder.  These crimes encroach upon the freedom of the victim and therefore we don’t allow them.  These laws, however, do not impose on the expression of the victim, only the perpetrator and only on the negative action he has taken against another human being. 

School regulations must take the same approach.  Children should not be hurting one another, but they should be playing imaginatively. Sometimes imaginative play is rough, like playing with sticks as guns and swords.  Roughness does not mean danger, however, and we must carefully walk a line between allowing expression and allowing children to be hurt.

Tragic things happen in our world.  We cannot pen laws, however, that impose our adult fears on kids.  The tragedies that transpired at Sandy Hook Elementary or Columbine High School are not child problems.  They are problems transpired by the lack of care by adults for children.  It is never the responsibility of the child to fix our social problems and likewise our children should not be shouldering the fear that accompanies our social problems.  Adult problems that must be dealt with and understood away from the presence of our children. When we allow the fear of a few adults to influence our whole society, then we have just stolen the freedom of our society at large and thus we will all be enslaved by the emotional problems of a few select individuals. When this happens, we lose our most important rights, in this case, play.

]]> Walter Olson Schools Following Societal Trends

When they "err on the side of safety" in absurd ways, schools reflect trends in the wider society. Parents, lawmakers and influential opinion leaders have been sending off fearful and risk-averse signals for a long while now. Consider: 

  • Already, by ten years ago, British commentator Jenny Cunningham could write that "A significant body of research evidence now indicates that there has been a drastic decline in children's outdoor activity and unsupervised play. For example, it has been calculated that the free play range of children -- the radius around the home to which children can roam alone -- has, for nine-year-olds in the UK, shrunk to a ninth of what it was in 1970. Perhaps most damaging is that a climate has been created in which all supervised play is regarded as high risk, and parents or teachers who allow it are seen as irresponsible." Cunningham notes that families now tend to see the risks of being hit by traffic or (far less likely) abducted by strangers as ruling out outdoor play. "Yet, despite the increasing levels of worry, in reality children have never been safer." Sound familiar? (Play On)
  • Consider the wild legislative overreaction of the U.S. Congress -- ratified by then-President George W. Bush -- in passing the Consumer Product Safety Improvement Act (CPSIA) of 2008 in response to scattered reports of toys that failed to meet existing safety standards. In attempting to bar any levels whatsoever of lead or bendy-plastic "phthalates" from getting into anything designated as a kids' product, lawmakers wound up banning a ridiculously broad array of new and used goods, including classic children's books in libraries (can you be sure all the inks in the illustrations are lead-free?), bicycles and recreation vehicles (the valves might include brass with some lead alloy) and vintage kids'  jeans and winter coats in thrift stores (the zippers likewise). In a perfectly typical, if mind-boggling, application of the law, education-supply companies were told they could not furnish rocks for study in geology classes unless they tested them first to make sure they did not contain lead, the way a great many ordinary rocks laying around outside do. The good news for science teachers was that it was still okay to hang up posters with pictures of rocks on them. While Congress eventually did pass a followup bill aimed at fixing some of CPSIA's more amazing excesses, that came too late to save many small makers of children's' products that had been driven out of business in the mean time. (CPSIA on the rocks)
  • Or consider schools as places of employment. Lenore Skenazy passes along the story (noted at my Overlawyered site) of the teacher who discovered that innocuous household supplies -- baby wipes, dish-cleaning liquid -- when kept in a classroom had to be accompanied in each case by a Material Safety Data Sheet (MSDS) spelling out the risks of each. (MSDS sheets have been giving way more recently to a replacement known as SDS.) Readers wrote in to say this was nothing specific to schools -- workplaces of any sort that wanted to be sure of compliance with the law have to manage large assemblages of MSDS sheets (covering, for example, each variety of wood in a carpentry shop) even when the risk of toxic overdose or explosion seems fanciful at best. Even bottles of distilled water can't stay on hand if lacking their MSDS. (Cleaning supplies in the classroom? Your papers, please)

If these are the trends in the outside society, how likely is it that schools will be able to resist?

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http://newtalk.org/2013/06/risk-and-legal-fear-in-schools.php http://newtalk.org/2013/06/risk-and-legal-fear-in-schools.php Education Wed, 05 Jun 2013 10:00:00 -0500
Obsolete Law Solutions Obsolete law is a significant—and ignored—cause of government waste and an obstacle to economic growth. Yesterday’s laws and regulations cannot always adequately address today’s needs. Worse yet, they often senselessly tie the hands of government officials and Americans in every sector of society, preventing them from making common sense decisions to address challenges or create opportunities.

Outmoded laws and regulations often perpetuate government programs and bureaucracies that no longer have a sensible purpose. From seventy-five year-old agricultural subsidies to the fifteen separate agencies overseeing food safety, these programs waste tax dollars and gum up the system. Removing them would be a strong step toward putting America on firmer fiscal ground in both the short and long term.

When states and the federal government have attempted to address accumulated law in the past, their efforts have mainly focused on reducing short-term budget shortfalls and not on the structural problems that lead to legal accumulation in the first place. More direct approaches, like sunset laws, have largely failed to change the status quo. As a result, the problem of obsolete law persists—and in fact has grown worse.

Common Good has proposed Spring Cleaning Commissions for both state and federal governments: an independent body of current and former government officials and private citizens that would comb through existing laws, regulations, and programs to identify those which are obsolete and redundant. The commissions would draft plans to simplify and streamline these laws, regulations, and programs, which state and federal legislatures would then have the opportunity to approve or reject in full.

The challenge for this forum is straightforward: What approach would you recommend for addressing obsolete law, why, and how would you implement it?

We’ve asked experts with a variety of perspectives on the relevant issues to share their assessments, and we invite you to share your thoughts in the comments below.

]]>
Obsolete law is a significant—and ignored—cause of government waste and an obstacle to economic growth. Yesterday’s laws and regulations cannot always adequately address today’s needs. Worse yet, they often senselessly tie the hands of government officials and Americans in every sector of society, preventing them from making common sense decisions to address challenges or create opportunities.

Outmoded laws and regulations often perpetuate government programs and bureaucracies that no longer have a sensible purpose. From seventy-five year-old agricultural subsidies to the fifteen separate agencies overseeing food safety, these programs waste tax dollars and gum up the system. Removing them would be a strong step toward putting America on firmer fiscal ground in both the short and long term.

When states and the federal government have attempted to address accumulated law in the past, their efforts have mainly focused on reducing short-term budget shortfalls and not on the structural problems that lead to legal accumulation in the first place. More direct approaches, like sunset laws, have largely failed to change the status quo. As a result, the problem of obsolete law persists—and in fact has grown worse.

Common Good has proposed Spring Cleaning Commissions for both state and federal governments: an independent body of current and former government officials and private citizens that would comb through existing laws, regulations, and programs to identify those which are obsolete and redundant. The commissions would draft plans to simplify and streamline these laws, regulations, and programs, which state and federal legislatures would then have the opportunity to approve or reject in full.

The challenge for this forum is straightforward: What approach would you recommend for addressing obsolete law, why, and how would you implement it?

We’ve asked experts with a variety of perspectives on the relevant issues to share their assessments, and we invite you to share your thoughts in the comments below.

]]>Stuart Taylor Use a Blue-Ribbon Commission

 

Given the difficulties that have been identified with the most familiar proposals for cleaning out obsolete law -- sunset provisions, commissions suggesting law reforms for lawmakers to adopt, and more -- I suggest something more complicated, with apologies to anyone who may have suggested it before.

How about a law authorizing the president (or the governor, in the case of a state) to nominate a blue-ribbon commission of active and retired federal (or state) judges, who in turn would have the authority to appoint as many expert advisory bodies as they see fit, and to update laws in any way that they deem likely to garner broad public support and survive the political branches' scrutiny? Nominees for the commission would be subject to the Senate's advice and consent. Most important, its proposals would take effect automatically after 180 days unless rejected by the president (or governor) or overridden by a new law. It could be called the Commission for Fixing Obsolete Laws and Regulations.

This idea is a distant cousin to Judge Guido Calabresi's 1985 proposal to authorize judges -- who have a good vantage point for identifying obsolete laws -- to override them on a case by case basis. But the Calabresi proposal has never caught on because it would give courts too much power to dispense with laws based on individual judges' personal or ideological preferences. Hence the idea of a commission of judges -- or, perhaps, of judges and others with relevant expertise.

Still, an unchecked power to rescind or revise democratically enacted laws might be too broad to delegate even to a blue-ribbon commission. Hence the idea of a presidential power to reject commission proposals, which would supplement the established power of lawmakers to override any law, including one proposed by a commission.

Some would no doubt argue that this gives too much power to the executive, who would have the authority not only to nominate commission members but also to either reject their proposals or prevent the legislature from rejecting them (absent a supermajority vote to override any presidential veto).

But in our system, given legislative inertia, the more cautious approach of allowing the commission only to make recommendations for lawmakers to consider would doom the vast majority of the recommendations, no matter how wise or how widely supported. The only way to make a serious dent in this gigantic problem is to create a body with the power to make things happen unless overridden by the executive or by a new law.

The Senate's power to reject nominees should be an adequate safeguard against any executive power grab, especially if exercised with the understandings that in this context the Senate owes no deference at all to partisan or immoderate nominees; that slates of nominees must be ideologically balanced; and that the commission's assignment is to propose good-government reforms with broad bipartisan appeal, not to promote anyone's political agenda.

One virtue of this proposal (among others) is that the commission could use its discretion to attack the biggest problems, whether they be EPA regulations that have outlived their usefulness or financial regulations that were never useful in the first place, rather than wasting time on obsolete laws that are harmless or unenforced.

Of course, any such commission would be incapable of taking bold action to junk laws and regulations that have broad political constituencies, no matter how obsolete they may seem to some of us. But the same would be true of any other proposal that I can imagine. And mine seems a better bet than others to weed out obsolete laws and regulations that have previously been sustained by narrow but powerful special interests -- not least, by the federal bureaucrats who administer them.

 

 

]]> James Maxeiner Many Hercules-es are Needed

 

Obsolete law is the hydra-headed monster that devours the fruits of our labors and even our fellow citizens. President Lincoln, in his first state-of-the-union message, called on Congress to devise a plan to fight the evil of thousands of obsolete, conflicting and confusing laws, and predicted that the accomplishment of such a plan would improve government and bring “lasting benefit to the people. “ Congress eventually did devise a plan, which resulted in the modestly successful Revised Statutes of 1877.

151 years later the Common Good, following Lincoln’s lead, asks us all to help devise a new plan. We are to give our ideas of how to go about accomplishing this Herculean task. There are many questions we must answer. Here, I would like to begin by identifying three for discussion: what kinds of champions should we choose to fight obsolete law? With what plan should they attack? And, with what results in mind?

What kinds of champions should we choose? Why Hercules, of course, and his nephew, Iolaus. We will need not one Hercules, but many male and female Hercules-es and their nieces and nephews. Where Lincoln faced thousands of laws, we face tens of thousands.  

I will make the case that it is not too much to expect that our most respected jurists take on the task. The first century of our republic was replete with law reform. Hercules was the model reviser. Already in 1791, the year of the Bill of Rights, the Pennsylvania House of Representatives sought a jurist “to prepare bills, containing such alterations, additions and improvements, as the code of laws, and the principles and forms of the constitution then lately adopted might require.” It selected Justice James Wilson—the Revolutionary era’s Herculean jurist and signer of both the Declaration of Independence and the Constitution. The task was too much for him (after all, even Hercules needed the help of his nephew Iolaus to kill the hydra) and too little supported by the legislature; it went unaccomplished. Thirty years later New York tapped three distinguished jurists to carry through the successful revised statutes of New York of 1828. In 1835 Justice Joseph Story—the maker of American law par excellence and Justice Marshall’s trusted compatriot on the Supreme Court—headed up a Massachusetts committee of five that called for codification. David Dudley Field, the leading law reformer of all of American legal history, fought indefatigably for four decades for sensible laws; he headed up two different commissions, each composed of three commissioners. 

How should our champions go about cleaning out obsolete law—en gross or in discrete legal fields? History teaches that cleaning up obsolete laws will take a long time. The Commission that Lincoln inspired in 1861 was not established until 1866 and did not produce its final report until 1873. Congress required another year to deal with it and corrections led the proposal to achieve final form only in 1877. It single task was enormous: address all public statutes.

Breaking the task up into smaller pieces is more practical. Field broke up his reforms into five pieces; he seems to have taken as his model the famous five French codes of Napoleon. Today the French have more codes than the classic five and have added other laws that are code-like in coverage. We would do well to follow the contemporary French model and break the task up into ten or more subject-related areas, each under its own Hercules. Such division is practically compelled if results are to be delivered in reasonable time and with reasonable quality. 

In plotting our strategy we should consult those with experience. Law revision has been ongoing, if muted, in America through the twentieth and into the twenty-first century. I has been undertaken by, among others, the Uniform Laws Commission, the American Law Institute, state law reform commissions, the legislative counsel of the House of  Representatives and of the Senate and—most important for this project—the Office of Law Revision Counsel of the House. The Office of Law Revision Counsel has been charged for decades with overseeing the United States Code and with preparing enactments of the code’s more than fifty titles into positive law. It has a staff of fifteen lawyers. Our task will require many more. We should not forego the benefits of those with experience. Later I should like to address what we might learn from foreign systems.

What results should our champions seek—restated or revised law?  The Office of Law Revision Counsel of the House avoids substantive changes in law. Its work is technical. Lincoln wanted more: laws “should be made as plain and intelligible as possible, and be reduced to as small a compass as may consist with the fullness and precision of the will of the Legislature and the perspicuity of its language.” Justice Wilson wanted to make of the criminal laws the “first experiment of their justice and efficacy.” The drafters of the 1828 New York Revised Statutes were criticized for taking too many liberties with substantive law. So too were the authors of the 1874 federal Revised Statutes. We see the same phenomenon today in criticisms of the work of the ULC and of the ALI.  The act of eliminating obsolete law and coordinating that which remains seems almost inevitably to attempt to write better laws. But that effort inexorably risks sweeping the proposals into the whirlpools of those interested in continuing obsolete laws. That is why we need Hercules-es, Iolaus-es and perhaps Ulysses-es as well!

 

]]> Ron Faucheux Practical Ways to Eliminate Obsolete Law

 

There is a lot of talk about reducing the budget deficit. Raise tax rates? Repeal deductions? Cut spending? But if we don’t change the fundamental system that’s produced the fiscal mess, it will only get worse. 

An embedded flaw in the system is obsolete law. This includes not only outdated legal rules, but costly government programs that are no longer needed and regulations that have become useless or, worse, counterproductive.

As a former legislator and state cabinet official, I learned the hard way how government works––and why, often, it doesn’t.

Legislators often pass bills that create new rules and bureaucracies to solve problems. Do this! Don’t do that! 

The snag is that many of these bills don’t do what they’re supposed to do. Frequently, bureaucrats ignore them and the initial purpose fades away. In other cases, they no longer meet the changing needs of modern society. All the while, useless laws, agencies and regulations pile up. Billions of dollars are wasted. And millions of hours spent by public employees and private citizens are exhausted trying to deal with paperwork that shouldn’t even exist.

So how do we solve the problem of obsolete law? 

One way tried, with minimal success, is the sunset provision––putting expiration dates on laws and rules. This approach forces legislators and regulators to act if they want to keep a law or a rule on the books. 

To understand how to make sunsets work, we need to first take a look at the three historical motivations for using them:

The first is political. Sometimes it’s easier to pass a controversial bill if its life is limited, like the assault weapons ban of 1994, which had a 10-year sunset. The ban, which expired eight years ago, has never been reenacted.

The second motivation has to do with legislative rules. The 2001 and 2003 Bush tax cuts, for example, were passed with a 2010 expiration date. That was done to avoid a Senate rule that allows Senators as part of the reconciliation process to block legislation if it increases the federal deficit beyond a ten-year term. In 2010, the tax cuts were extended, but with a two-year sunset, expiring at the end of 2012––which, of course, helped drive us to the “fiscal cliff.”

The third motivation is the most noble––and the one that can best solve the problem of obsolete law––and that is the concept of review. The idea here is that every new law, program or regulation should be road tested and then reviewed to see if it works as intended. They should also be periodically revisited to ensure they’re still needed as circumstances evolve. While sunsets are often included in laws for this reason, the problem is the depth and quality of the review process upon expiration. 

Inadequate review is the reason many sunset provisions are, in effect, meaningless. Legislatures routinely re-enact noncontroversial laws with sunset provisions without much thought and with virtually no review process. Reenactments are often packaged together on “consent” calendars and sail though the process without debate. The point of the exercise––a careful re-evaluation of existing law––is ignored.

Legislative bodies don’t take the sunset review process seriously for two practical reasons: interest groups and legislative focus.

Interest groups don’t want legislators poking around favored rules, programs and laws. These groups prefer the status quo––and it’s easy for legislators to comply. Reviewing and revising old deals and compromises that have been embedded in law books and regulatory codes can be risky business for a politician.

It is very hard––nearly impossible––to get a legislative body to focus on anything except those issues on that day’s or week’s calendar. Legislators and their staff members are busy people; asking them to stop and consider the effectiveness of an old law when they’re running around trying to pass, defeat or amend new ones is contrary to how they roll.

So how do we get over these institutional humps? 

We need to focus new public attention on the sunset review process. When an outmoded law is up for review, it should be called out––even if it’s not a big deal like gun control or taxes––and used as an example of government idiocy. When a program is about to sunset, and there is ample evidence it’s no longer needed, the dollar amount of the wasteful expenditure should be publicized.

Spotlighting obsolete laws, useless programs and senseless regulations when they are about to sunset can be done by civic groups and the media. Citizens testifying before legislative committees, holding press conferences on capitol steps, and writing op-eds and blogs will force elected officials to at least listen. If the sunset review process won’t work from the inside, outside pressure is needed to compel it to work.

We also need to create a mechanism––outside of both the legislative process and the bureaucracy––to review all laws and programs. Independent commissions appointed by presidents and governors can do this. These panels should be composed of citizens who have practical expertise and no conflicts of interest. They would conduct reviews and make the results public, releasing recommendations on which laws, rules and programs should be repealed or reshaped.

Eliminating obsolete law is not easy. That’s why we need to keep trying new ways. 

In the end, good government is hard work––for both elected officials and citizens. There is no way around it.

]]> E. Donald Elliott Buy Out the Special Interests

 

There are, I think, several different types of "obsolete law" that require different remedies.  The least dangerous, and most humorous, kind is the quaint law that no one has bothered to change, or enforce, since times have changed:

"Many of these laws were developed before the advent of mechanized transportation. Oftentimes, they relate to the treatment and care of horses. Consider, for example, that in Kansas, all places of business are required by law to provide a water trough for horses, or that in Alabama, it is an offense to open an umbrella on the street, since it might spook horses. In California, you are breaking the law if you pile horse manure more than six feet high on a street corner." (http://www.equisearch.com/community/lifestyle/itsthelaw072901a/)

A more pernicious kind, however, is when the law that once served a purpose is maintained long after the circumstance that justified its birth because of support by an interest group that benefits from its retention.  The oils depletion allowance (which has gradually been phased out) is the classic example: perhaps it was necessary originally to induce companies to engage in the risky business of exploring for oil, but as oil company profits zoomed, we continued to subsidize this activity with favorable tax treatment.  Another might be the current subsidies and mandates for ethanol from corn, which are of questionable value from an environmental standpoint but of great interest in Iowa (which plays a key role in the Presidential primaries).  A third would be rent control in New York City, which was justified by an "emergency" situation during World War II, but still benefits some tenants who still pay below market rents.

In these instances, it generally isn't sufficient to expose the law as obsolete.  I have reluctantly come to the conclusion that in some instances we have to buy out the special interests who benefit from these obsolete legislative enactments.

This is a strategy we have used with success in many other areas:  it is much easier to make mass layoffs if a company is able to offer employees an attractive "package" of incentives to retire early.  So too academic work has shown that partial compensation will often reduce political opposition to programs such as wetlands preservation, thereby leading to tougher regulation than if there were no compensation.  

]]> James Maxeiner A Permanent Institution

 

Common to most of the comments is recognition that getting rid of obsolete laws requires creation of an institution that has political clout and responsibility. I think that it should be a permanent institution and not an ad hoc one. Only in that way can future obsolete laws be headed off. It will have to work with many different institutions, i.e., legislatures, cabinet departments, agencies and so on. It might take any of a number of forms, e.g., a Department of Legislation, a Ministry of Justice (such as U.S. Justice Cardozo once proposed and is found in many countries), a Productivity Commission (Australia), a Norm Control Council (Germany) or a Higher Codification Commission (France). Our problem is common problem that other countries have already addressed more thoroughly than we.

An international organization that we helped found, the Organisation for Economic Cooperation and Development (OECD), is helping the leading economic powerhouses put their legislative houses in order. Just last March it issued a Recommendation on Regulatory Policy and Governance which is a continuation and culmination of many years’ work designed to improve government and further economic and social development. http://www.oecd.org/gov/regulatorypolicy/49990817.pdf

Whatever institutional form our efforts take, I suggest that we follow OECD  recommendations and:

"Commit at the highest political level to an explicit whole-of-government policy for regulatory quality. The policy should have clear objectives and frameworks for implementation …;  systematically review the stock of regulations periodically to identify and eliminate or 
replace those which are obsolete, insufficient or inefficient; and adopt an integrated approach, which considers policies, institutions and tools as a whole, at all levels of government and across sectors, including the role of the legislature in ensuring the quality of laws …"

We may already have the germ of that idea in the White House Office of Information and Regulatory Affairs. http://www.whitehouse.gov/omb/inforeg_default/.  We should extend it with force to law generally.

 

]]> E. Donald Elliott Follow States' Examples

 

I agree with Jim Maxeiner that we need a permanent institution that proposes revisions. In fact, I wrote an article in 2008 proposing such institutions: E. Donald Elliott, Portage Strategies for Adapting Environmental Law and Policy During a Logjam Era, 17 NYU Envt’l L.J. 24, 51-52 (2008). Among other things, I point out that Connecticut and several other states already have such bodies, and that they also seem to work well to update the law in the few areas of federal law (such as the Standing Committee of Rules of Practice and Procedure and Administrative Conference of the United States www.acus.gov) where we have one:

"The United States Congress stands out internationally as one of the few places where the task of developing and proposing legislation on complex technical subjects is left to the legislators. … One option for going around the Congressional "logjam" is to build an ancillary institution with the time and expertise to hammer out policy changes and present them to Congress for ratification, rejection or fine-tuning. There are numerous examples of this model in which a diverse group of experts puts together consensus recommendations to legislatures.  For instance, some states [Connecticut and California] have what they call Law Revision Commissions that make recommendations for legislation to the legislature. …This is not too different from the Standing Committee on Practice and Procedure under the federal Rules Enabling Act (except that the ratifying bodies are both the Supreme Court and Congress), or the idea behind the American Law Institute's "Restatements" of the common law in various areas, or the Administrative Conference of the United States, which, until its [temporary] abolition in 1995, made expert recommendations to Congress for improving the administrative process.

"In each of these "expert consensus proposal systems," managing change in a complex and highly technical legal system is facilitated by expert advice and guidance in developing policy packages that already contain the key compromises built into them."

 

]]> Ron Faucheux What Scope Should a Review Entity Have?

 

When thinking about creating permanent entities to review existing law and regulation, we need to consider scope of work: Will these entities focus on only technical cleanup and revision or will they also make policy judgments as to whether a law, a regulation or a program is actually working and still needed?

While the broader scope would be more controversial and much more political, it would also yield bigger results.

Determining that a multi-billion dollar farm subsidy program is no longer needed, or that prevailing wage rules in public infrastructure projects are no longer defensible, are conclusions that would attract significant political opposition. But aren't these issues, tough and messy as they are, the kind of issues in need of a spotlight? Aren't they necessary for accomplishing important policy goals such as balanced budgets and more efficient government?

Another point should be made about entities created to weed out obsolete law, and that is the need for outside input and independent thought. If such an entity--be it a commission, a committee or an actual department--is made up of government insiders, will it give issues the fresh perspective that is needed? Or will it tend to go along with the status quo?

 

 

]]> Stuart Taylor Two Commissions?

 

Ron has put his finger on the trickiest question for any body appointed to target obsolete laws. As he suggests, entirely uncontroversial updating and housecleaning is worth doing, but unlikely to make as big a difference as we need. On the other hand, tackling special-interest sacred cows such as the Davis-Bacon Act, farm subsidies, and the wildly excessive paperwork requirements of HIPAA (the Health Insurance Portability and Accountability Act) could make a big difference, but seems an uphill battle.

(I take it as a given that while most of us would like to see a law-reform commission tackle broadly unpopular laws that survive only because of special interests, it would be probably be an exercise in futility for such a body to target laws that have the support of a majority, or even a large minority, of the general public.)

Uncontroversial housecleaning and tackling special-interest sacred cows are very different projects. A seat on a commission devoted mainly to the former might not be attractive to many of the prominent, high-powered people whose clout would be essential to doing the latter.

So I wonder whether we need two commissions, at least at the federal level, one for housecleaning and one for targeting obsolete (and unpopular) laws that have been sustained by narrow special-interest support.

I wince at the thought of adding not just one, but two, new governmental bodies as part of an effort to cut through bureaucratic paralysis. But could a single commission do both jobs well?

 

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http://newtalk.org/2012/12/obsolete-law-solutions.php http://newtalk.org/2012/12/obsolete-law-solutions.php Society Tue, 11 Dec 2012 10:43:24 -0500
NewTalk Founder Delivers "Stunning" TED Talk The video of NewTalk founder and frequent NewTalker Philip K. Howard’s TED Talk, Four Ways to Fix a Broken Legal System, is now available online via TED, Huffington Post, and Overlawyered.com, the blog of NewTalker Walter Olson:



TED Curator Chris Anderson posted the following comments on the Talk via Twitter:

We’re about to release a talk from TED2010 that I wish every member of Congress, every Supreme Court justice would see…  about 8 hours ago

Philip Howard on how to ease the suffocating stranglehold of law in US http://on.ted.com/89lO Please RT. Stunning talk. #TED  about 8 hours ago


[TED]
[Twitter]
[Huffington Post]
[Overlawyered]

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http://newtalk.org/2010/02/newtalk-founder-delivers-stunn.php http://newtalk.org/2010/02/newtalk-founder-delivers-stunn.php Tue, 23 Feb 2010 10:40:46 -0500
NewTalkers in the News: Philip K. Howard Reviews Gawande, Stuart Taylor Discusses Bureaucracy In his review of Atul Gawande’s Checklist Manifesto, NewTalk founder and NewTalker Philip K. Howard argues that although a careful checklists that ensures cleanliness and safety might be life-saving in an operating room, Dr. Gawande’s theory falls short when he attempts to make the broader point that formal checklists are a key to success in nearly all aspects of daily life—as Dr. Gawande puts it: ”Checklists seem able to defend everyone, even the experienced, against failure in many more tasks than we realized. They provide a kind of cognitive net. They catch mental flaws.” Dr. Gawande goes so far in one example as to suggest that a proper checklist can successfully delegate authority, which he contrasts with an ineffectual centralized bureaucracy. On the contrary, Howard contends that “giving someone the authority to use her judgment means relying on individual creativity and improvisation—the opposite of a checklist.” Howard notes that “bureaucracy is nothing but checklists.” “Accomplishment is personal,” Howard concludes. “Dr. Gawande is right to note that checklists are indispensable in situations where a small mistake can lead to tragic consequences, as in surgery. But his call for a broad checklist regime would be counterproductive—fraught with all the dangers of bureaucracy and excessive law.” [Wall Street Journal]

In his most recent column in the National Journal, NewTalker Stuart Taylor addresses the “calcification” of American democracy, arguing that “governments at all levels” are seemingly unable to meet America’s challenges. Taking up an argument often made by Philip K. Howard, Taylor states that special interest groups - who, since the 1960s have “pressed governments and courts to elevate their ‘rights’ … over the public good" - are partly to blame for this governmental dysfunction. Taylor quotes Howard who argues that, over time, this deference to self-interests “has created a ‘jungle of law, growing denser every year, that has submerged individual responsibility to do what makes sense under a deluge of rules and rights, and paradoxically undermined everyone's freedom.’” Taylor quotes Howard further, relating his argument that: “Individual responsibility should be the principle by which America reforms its public institutions …. Americans increasingly feel frustrated and powerless because law has corroded the hierarchy of responsibility needed for anything to work.” [National Journal]

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http://newtalk.org/2010/01/newtalkers-in-the-news-philip.php http://newtalk.org/2010/01/newtalkers-in-the-news-philip.php Thu, 21 Jan 2010 11:01:30 -0500
NewTalk Founder: Health Reform Needs to Focus on Cost Containment, Personal Responsibility In an op-ed for the New York Daily News, NewTalker Philip K. Howard argues that, with the American health care system’s estimated $1 trillion of wasted spending every year, reform needs to focus on containing costs.  “That's the only way America can afford universal care,” Howard writes.  He continues that “[w]hat's missing in American health care is a basic principle essential to all human accomplishment: Individual responsibility, in this case responsibility for prudent use of health care resources.”  To achieve this, Howard outlines a four-pronged overhaul to the current system: “(1) pay doctors based on overall results, not piecework reimbursement; (2) require patients who can afford it to pay a meaningful portion of their care; (3) minimize defensive medicine by creating a reliable system of medical justice; (4) reduce bureaucratic overhead and complexity (which also clears out the thicket in which fraud can hide).” 

For a more detailed explanation, read the entire article on the New York Daily News website.
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http://newtalk.org/2009/12/newtalk-founder-health-reform.php http://newtalk.org/2009/12/newtalk-founder-health-reform.php Mon, 21 Dec 2009 10:28:23 -0500
NPR's Robert Siegel Interviews NewTalk Founder on Health Reform On December 11, 2009, Philip K. Howard sat down with NPR's Robert Siegel to discuss medical liability reform as part of the Maxwell School/Public Agenda Policy Breakfast Series.

Watch the video below:


[Public Agenda]

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http://newtalk.org/2009/12/nprs-robert-siegel-interviews.php http://newtalk.org/2009/12/nprs-robert-siegel-interviews.php Thu, 17 Dec 2009 10:43:59 -0500
NewTalk Founder Discusses Health Courts and School Discipline NewTalk founder (and frequent NewTalker) Philip K. Howard has two recent pieces of note:

  • In a posting at the Robert Wood Johnson Foundation’s Health Reform Galaxy blog, Howard discusses the value of health courts as a tool not just for reliable justice, but for improved care and cost containment as well. Referencing Common Good's December 10th forum, "Fulfilling the Promise" - organized with the support of the Robert Wood Johnson Foundation - he argues that, despite the trial bar’s opposition to reform, “patient safety experts, consumer groups, providers, as well as editorial boards and the public at large, all overwhelmingly support trying to create a reliable foundation of justice.” [Health Reform Galaxy]
  • “Strong leadership, respect for authority, and perception of fairness are essential to create a positive, productive school culture,” Philip K. Howard writes in a piece for EducationNext. "And yet the encroachment of due process into daily discipline decisions has undermined all three.” Citing a 2009 study by Richard Arum and Doreet Preiss showing that the real threat of litigation has harmed the learning process, Howard suggests that educators "reverse course" by re-enforcing the role of teachers as leaders in the classroom, and by fostering a culture that will "encourage all members of the school community to participate in promoting the values and discipline protocols in schools." [EducationNext]
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http://newtalk.org/2009/12/newtalk-founder-discusses-scho.php http://newtalk.org/2009/12/newtalk-founder-discusses-scho.php Tue, 15 Dec 2009 15:04:20 -0500
Common Good Forum on Patient Safety and Medical Liability Innovations NewTalk's parent organization, Common Good, with the support of the Robert Wood Johnson Foundation, will hold a forum on December 10th, 2009, at the National Press Club in Washington, D.C.  The forum, titled "Fulfilling The Promise: Advancing Patient Safety and Medical Liability Reform Innovations," is intended to educate "states, health care systems, and other interested entities and individuals...about patient safety and medical liability reform innovations, and how to develop viable proposals for submission to the Agency for Healthcare Research and Quality next January."

NewTalk founder and frequent NewTalker Philip K. Howard will be among the speakers, listed below:

  • Dr. Lucian L. Leape, Chair, Lucian Leape Institute at the National Patient Safety Foundation
  • Michelle Mello, Professor of Law and Public Health, Harvard School of Public Health
  • Randall R. Bovbjerg, Senior Fellow, Health Policy Center, The Urban Institute
  • Nancy Foster, Vice President for Quality and Patient Safety Policy, American Hospital Association
  • Dr. Albert L. Strunk, Deputy Executive Vice President, The American College of Obstetricians and Gynecologists
  • Elaine Brightwater, Senior Project Coordinator, Center for Development and Disability, University of New Mexico
  • E. Donald Elliott, Professor (adj) of Law, Yale Law School and Partner, Willkie Farr & Gallagher LLP, Washington DC
  • Richard C. Boothman, Chief Risk Officer, University of Michigan Health System
  • Gordon H. Smith, Executive Vice President, Maine Medical Association
  • Dr. Alan C. Woodward, Former President, Massachusetts Medical Society
  • Martin J. Hatlie, President, Partnership for Patient Safety
  • David J. Oakley, Counsel, Healthcare, Manatt, Phelps & Phillips, LLP
  • Robert J. Walling, Principal and Consultant, Pinnacle Actuarial Resources, Inc.
  • Philip K. Howard, Chair, Common Good

Questions the forum will address include:

  • How can projects be designed to address both patient safety and medical liability?
  • What are the best ways to include key stakeholders in projects?
  • How can projects be measured and evaluated?

The event will be webcast live, beginning at 8:30AM on December 10th, from the following site: http://www.visualwebcaster.com/event.asp?id=64481.

[Common Good]

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http://newtalk.org/2009/12/common-good-forum-on-patient-s.php http://newtalk.org/2009/12/common-good-forum-on-patient-s.php Thu, 03 Dec 2009 14:37:33 -0500
The AP Reports a 'New Malpractice Idea in Health Care Debate' Philip K. Howard (our founder) and Will Marshall, the Associated Press reports a "boost" for the health courts concept, thanks to President Obama's "willingness to consider alternatives to medical malpractice lawsuits." According to the release, proponents of health courts, and similar proposals such as the one put forth by the American Hospital Association, will have an opportunity to to "urge the administration to provide funds for a pilot program" at a Health and Human Services hearing next week. "Obama has set aside $25 million to test a range of alternatives to malpractice litigation, and the hearing is the first step in deciding how to distribute it."

Philip Howard and NewTalk's parent organization, Common Good, are cited as long time proponents of the health courts idea. According to Howard, "all patients would benefit from such a system because it would create an incentive for doctors to follow clinical best practice guidelines."  "Defensive medicine," Howard argues, "is the result of distrust by doctors in situations where they are blamed when a sick person get sicker, but they didn't do anything wrong." The health courts concept is intended to alleviate this culture of fear and distrust while still providing fair compensation to injured patients.

Will Marshall supports the idea, according to the release. "There is a progressive opportunity here to leapfrog what has been a stereotypically polarized debate in Washington," says Marshall. "This serves both progressive and conservative goals. You wouldn't have to have a terrible injury and attract an enterprising malpractice lawyer to have access to court. And it would reduce malpractice premiums."

[Associated Press]
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http://newtalk.org/2009/10/the-ap-reports-a-new-malpracti.php http://newtalk.org/2009/10/the-ap-reports-a-new-malpracti.php Wed, 21 Oct 2009 10:57:37 -0500
NewTalk Founder Featured in CBS News Report, 'Sacling Back Justice?' The lead story on CBS News’ “Sunday Morning” yesterday was a report on the impact of legal fear in America.   segment featured NewTalk founder Philip K. Howard, and discussed his latest book, Life Without Lawyers.  In an interview, Howard explained that “law is vital in a free society....But law is a framework for freedom.  It shouldn’t be a system of micromanagement where it gets in the way of everyone’s daily choices.”

The report also featured interviews with several supporters of Howard's message, including fellow NewTalker Randi Weingarten. “Phil Howard is one of our heroes,” said Weingarten, referring to Howard’s advocacy for teachers:

There's some notion that has seemed to leave us, that teachers have a lot of common sense. And if you actually left it to their own professional latitude and judgment, and their own common sense, they could do a really good job....To trust people is what he's saying. And I think that's heroic.

[CBS Sunday Morning]

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http://newtalk.org/2009/10/newtalk-founder-featured-in-cb.php http://newtalk.org/2009/10/newtalk-founder-featured-in-cb.php Mon, 19 Oct 2009 11:22:27 -0500
NewTalkers Philip K. Howard and Stuart Taylor on Medical Liability Reform Last Tuesday, Sepetember 29, found NewTalk Founder (and frequent New Talker) Philip K. Howard in the Wall Street Journal with an op-ed titled "Why Medical Malpractice Reform is Off Limits." In the piece, Howard laments that even though serious reform to the current medical malpractice system could save upwards of $200 billion annually, and even though there's broad support for it—including from a number of parient safety groups—"this is the one reform Washington will not seriously consider." This, Howard argues, is due in large part to the fact that trial lawyers are a powerful lobby, and among the largest contributors to the Democratic party. "Trial lawyers trade on the unreliability of [the current] justice [system]," Howard explains, and this creates a culture of litigation that is unequipped to distinguish good medical care from bad.

Howard proposes specialized, expert health courts as a potential remedy for the unreliable justice of medical malpractice litigation. Howard counters with a modest proposal the claim (often put forward by trial lawyers) that "any alternative to the current medical malpractice justice system...will only make it more difficult for injured patients to seek justice":

That's why you start with a pilot project. If these courts are unfair they will be rejected. But if they succeed—that is, are fairer to patients and doctors—they could provide a solid foundation for rebuilding an effective, less costly health-care system than we have today.
[Wall Street Journal]


In the October 3rd edition of the National Journal, NewTalker Stuart Taylor expands on Howard's theme in a piece titled "Wasting Billions, Doing Injustice.” Like Howard, Taylor aruges that America’s current medical liability system may be good for trial lawyers, but it's bad for patients and doctors, and a major factor in the overall high cost of health care because it encourages doctors to practice defensive medicine.

Taylor also endorses a system of expert health courts, calling it the “most promising proposal” to reform America's current liability system:

By efficiently separating valid from invalid claims, health courts could award malpractice victims more-timely, more-certain compensation, with far lower legal and administrative costs. Health courts would also better protect blameless doctors and thus reduce defensive medicine.

[National Journal]

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http://newtalk.org/2009/10/newtalkers-philip-k-howard-and.php http://newtalk.org/2009/10/newtalkers-philip-k-howard-and.php Mon, 05 Oct 2009 13:00:39 -0500
Stay Tuned!
Stay tuned for more forums on America's toughest issues, to be announced soon.

In the meantime, view our latest discussion—a collaboration with the Harvard Kennedy School, titled Social Innovation in America's Cities: Getting More out of our Social Service Delivery Systems.

You can also find a complete list of past forums in our Archives.

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http://newtalk.org/2009/09/stay-tuned.php http://newtalk.org/2009/09/stay-tuned.php Economy Education Environment Healthcare Justice Society Fri, 25 Sep 2009 16:22:23 -0500
Philip K. Howard on Malpractice Reform and Health Courts (The Atlantic) Jay Greene hasn't been the only NewTalker advocating reforms.  NewTalk founder and frequent participant Philip K. Howard has been busy with his correspondence for TheAtlantic.com. Since the release last week of the Common Good- and CED-funded survey showing that a large majority of voting Americans are interested not only in medical malpractice reform but a system of specialized health courts to resolve malpractice cases (a cause for which both Howard and Common Good have long advocated), Howard has written two articles on the subject.

In Next Steps for Malpractice Reform, Howard calls on President Obama and Congress to listen to the popular voice's call for reforming the legal system to curb defensive medicine.

In The Menu of Malpractice Reforms, Howard expands on this idea, alluding to the President's pledge to "promote pilot projects to solve the problem of defensive medicine," and arguing that "creating special health courts is the proposal advanced by most serious observers to eliminate the incentives for defensive medicine—including by consumer groups such as AARP, patient safety groups, medical societies such as the AMA and the American College of Obstetricians and Gynecologists, and by such thought leaders as Bill Bradley, Mark McClellan, Newt Gingrich, and David Brooks." Referring again to the survey, Howard further notes that the health courts proposal also has 67% approval from the public.

[The Atlantic]
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http://newtalk.org/2009/09/philip-k-howard-on-malpractice.php http://newtalk.org/2009/09/philip-k-howard-on-malpractice.php Mon, 14 Sep 2009 17:32:47 -0500
NewTalkers in the News: Jay Greene Jay Greene—the moderator of NewTalk's 2nd forum on NCLB—discusses "The Problems With Special Ed" in the National Review Online.  Greene is concerned about the increasing number of public school children categorized as "learning disabled," and the dramatic variation from state to state.  He notes that nearly twice as many New Jersey students are classified as disabled as their California counterparts.  "There is no medical ‎reason," he argues, "why students in New Jersey should be 71 percent more likely to be placed into ‎special education than students in California."

Greene notes that over the last three decades, the number of students classified as disabled has increased 63%, and 86% of that increase has been in two categories—"specific learning disability (SLD, which includes dyslexia) and 'other health' (which ‎includes attention-deficit disorders—ADD)," which categories Greene describes as "relatively mild and ‎ambiguous.”‎

Greene aruges that the upshot of this is an alarming number of speciously-, or just plain wrongly-diagnosed Special Ed students—students who "may be struggling because they ‎have been taught poorly or because they have a difficult home life" but in fact have no true diability; "wrongly identified ‎as disabled who really need only remedial education.‎"

Greene cites various probable cuse such as extra federal funding given to schools for disabilities.  He also enumerates a number of dangers he sees in this systemic misclassification—ranging from inefficiencies and mountains of unnecessary procedural paperwork to detrimental stigmatization and inappropriately lowered academic expecations, as well as fewer available resources for the truly disabled students.

Greene's solution is to "develop procedures for identifying and auditing disability classifications independent of the school ‎systems, which suffer from obvious conflicts of interest. If reforms are not instituted," he says, "it won’t be ‎long until we live in a Lake Woebegone where all children are above average, and the ones ‎who aren’t are labeled 'disabled.'" [Nation Review Online]‎
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http://newtalk.org/2009/09/newtalkers-in-the-news-jay-gre.php http://newtalk.org/2009/09/newtalkers-in-the-news-jay-gre.php Mon, 14 Sep 2009 12:47:33 -0500
Common Good/CED-Commissioned Poll Finds Overwhelming Support for Medical Liability Reform & Health Courts A new nationwide poll (pdf) commissioned jointly by NewTalk's parent organization Common Good and the Committee for Economic Development, and conducted by Clarus Research Group, reveals vast public support for medical liability reform and specialized health courts—83% of American voters want Congress to address medical liability reform as part of any health care reform package, and 67% support the creation of health courts.

In his address to Congress last night, President Barack Obama proposed moving forward on a range of medical liability reform ideas that “put patient safety first and let doctors focus on practicing medicine.”  Common Good’s health courts proposal, as explained by founder and chair (and frequent NewTalker) Philip K. Howard in this New York Times op-ed, does exactly that.

“The American people want the system of medical justice to change,” Howard stated in a press release announcing the poll’s results.  “They are saying it in very large numbers, and they want it to change as part of health care reform.”

You can read the full press release—which includes endorsements from Senators Mike Enzi (R-NV) and Joe Lieberman (ID-CT), and former Senator Bill Bradley—, and the pdf summary of the poll results on Philip K. Howard's website.

[PhililpKHoward.com]

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http://newtalk.org/2009/09/common-goodcedcommissioned-pol.php http://newtalk.org/2009/09/common-goodcedcommissioned-pol.php Thu, 10 Sep 2009 15:46:24 -0500