Philip K. Howard

Philip K. Howard (born 1948) is an American lawyer and writer. Based in New York, Howard is a noted commentator on the effects of modern law and bureaucracy on human behavior and the workings of society. He is the Founder and Chair of Common Good, a nonpartisan, nonprofit legal reform coalition which is proposing a broad overhaul of American law and government. His new book, The Rule of Nobody (April 2014), has been endorsed by Governor Jeb Bush, Fareed Zakaria, Senator Alan Simpson, and Nobel laureate Edmund Phelps. Jon Stewart contributed to the book jacket, writing: “Philip K. Howard has always struck me as an eminently reasonable, articulate advocate for common sense solutions.” Positive reviews have appeared in numerous outlets, including the Huffington Post, Wall Street Journal, Daily Beast, Boston Globe, Bloomberg, and The Economist.

Howard is the author of The Death of Common Sense (1994), a bestseller which chronicles how overly detailed law has similar effects as central planning; The Collapse of the Common Good (2002), which describes how fear of litigation corrodes daily interaction; and Life Without Lawyers (2009), which proposes rebuilding reliable legal boundaries to define an open field of freedom where people are free to focus on accomplishing their goals, not protecting themselves from legal interference. Howard is a periodic contributor to the op-ed pages of the New York Times, The Washington Post, and the Wall Street Journal, and serves as a correspondent for The Atlantic.com. He also regularly speaks at universities, judicial conferences, think tanks, and other conferences, and has testified before both houses of the U.S. Congress.

Howard has attracted broad support for his ideas. In September 2010, New York Times columnist David Brooks highlighted Howard’s work on “the responsibility deficit” and embraced his solution for a “great streamlining,” calling it “the crucial theme of the moment”.^[1] Howard’s speech at the 2010 TED conference was praised by TED’s current CEO, Chris Anderson, as “stunning”^[2] and something that he wished “every member of Congress, every Supreme Court justice would see”.^[3] It has been viewed over 500,000 times. Former New Jersey Senator Bill Bradley praised Howard’s Life Without Lawyers as “a real wake-up call from one of America’s finest public minds,”^[4] while Washington Post columnist George Will deemed it “2009’s most needed book on public affairs.”^[5] In November 2010, Howard was a guest on The Daily Show with Jon Stewart, where he talked about starting a movement to streamline government and restore individual responsibility at every level of society.^[6] He made follow-up appearances in May 2011^[7] after the re-release of The Death of Common Sense and in June 2014^[8] after the release of The Rule of Nobody.

Trial lawyers and consumer groups are Howard's most vocal critics. They have accused him of having a “deep disregard for public use of the justice system”^[9] and favoring corporate over consumer interests. He has also been accused of offering a vision of American society that is too narrow, as Dahlia Lithwick writes in her Newsweek review of Life Without Lawyers: “… the one thing scarier than a bus full of lawyers is a bus without them.”^[10]

Howard has worked closely with leaders of both major political parties in the United States. He wrote the introduction to Vice President Al Gore's Common Sense Government, and has also advised a number of governors, including Democrats Lawton Chiles of Florida and Zell Miller of Georgia and Republicans Jeb Bush of Florida and Mitch Daniels of Indiana. He was also a special adviser on regulatory simplification to Securities and Exchange Commission Chair Arthur Levitt.

Howard is a prominent civic leader in New York City, responsible for chairing the committee that installed the “Tribute in Light” memorial for victims of the September 11 attacks, and is Chair Emeritus of the Municipal Art Society.

Background

Howard grew up in eastern Kentucky, the son of a Presbyterian minister. He was a scholarship student at the Taft School, Yale College, and the University of Virginia Law School. His first policy job was at the Oak Ridge National Laboratory, where he worked for three summers in the civil defense group, led by Nobel Laureate Eugene Wigner, and published a monograph on post-war economic recovery.

Following law school, Howard worked at the law firm of Sullivan & Cromwell, where he was a principal associate in the Chris-Craft case before the Supreme Court and was also in Kodak’s antitrust cases. As a young lawyer, Howard also became active in civic affairs, chairing the Zoning Committee of Manhattan Community Board 6 in Midtown and leading a number of battles against developers such as Harry Helmsley.

In 1983, Howard founded Howard, Darby & Levin (subsequently Howard, Smith & Levin). That firm merged with the Washington firm Covington & Burling in 1999, of which Howard became Vice-Chair. He remains a practicing senior counsel in Covington’s New York office.

Howard became an officer and then Chairman of the Municipal Art Society of New York, which led the battle to save Grand Central Terminal. Among his other civic projects, Howard opposed the original tower at Columbus Circle, arguing that it would have cast a shadow across Central Park, championed new codes that would increase the signage and lights on Times Square, and built a coalition to persuade the Post Office to relinquish most of the Farley Building so that it can become a new Penn Station.

As a citizen volunteer, Howard pushed to streamline federal OSHA rules on worker safety and worked with EPA Administrator Carol Browner to make environmental rules more flexible.

Howard’s experience as a civic leader led him to explore why government seemed incapable of making sensible choices, even when officials wanted to. This led to writing The Death of Common Sense.

In 2001, a week after the 9/11 attacks, Howard was contacted by architect Richard Nash Gould who suggested that two spotlights be placed at the World Trade Center site. Along with David Rockefeller, Howard organized a committee of leading citizens to support and fund such a project. The “Tribute in Light” memorial went up on the six month anniversary of the attack.

Common Good

In 2002, Howard formed Common Good, which advocates reforms to restore reliability to law and to rebuild authority structures needed to make common choices. The Advisory Board of Common Good includes a wide range of national leaders, including Howard Baker, Bill Bradley, Thomas Kean, George McGovern, Jeb Bush, Newt Gingrich, and Alan Simpson.^[11] Before becoming the U.S. Attorney General, Eric Holder was a trustee of the organization.

Common Good regularly organizes forums to study legal, educational, and governmental overhaul, hosting them jointly with think tanks such as the Brookings Institution, the American Enterprise Institute, and the Manhattan Institute. These forums attract thought leaders from around the country. In 2008, Common Good launched NewTalk.org, an online forum that has addressed a wide range of policy challenges. Leaders who have participated in NewTalk discussions include New York City Mayor Michael Bloomberg, Atlanta Mayor Shirley Franklin, and former U.S. Comptroller General David Walker.^[12]

Reforms championed by Common Good include:

• Creating special health courts. Common Good’s health court proposal, developed in a joint venture with the Harvard School of Public Health (and funded by the Robert Wood Johnson Foundation),^[13] is intended to bring reliability to medical justice,^[14] thereby avoiding the waste caused by “defensive medicine” and repairing the culture of distrust between providers and patients that impedes the open interaction needed for safe, effective care. Health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both doctors and patients could rely. The health court concept is supported by a broad spectrum of health care constituents, including the American Medical Association,^[15] AARP,^[16] and patient safety experts.^[17] Critics of the health courts concept contend that is ill-conceived, that it would be unfair to patients, that it would be unlikely to achieve its objectives, and that such of its goals as are reasonable can be achieved more fairly and with greater efficiency under the existing civil justice system.^[18] In March 2010, President Barack Obama sent a letter to Congress stating that he would support health court pilot projects.^[19]
• Restoring teachers’ authority to maintain order. Common Good’s education efforts are focused on decreasing bureaucracy in schools and restoring educators’ authority to maintain order in their schools and classrooms. Common Good believes these are essential preconditions for successful schools and that the national education debate has not adequately considered or addressed the impact that overregulation and disorder have had on school culture and academic performance. Common Good advocates giving public schools the same freedom, and accountability, as charter schools.^[20] Common Good has worked with leaders around the country, including in New York, Indiana, and Colorado, to restore teachers’ authority and build a foundation for success in troubled schools.
• Defining boundaries of lawsuits. Drawing on the thesis of The Collapse of the Common Good, Philip K. Howard’s second book, Common Good has worked to build consensus around the need for judges to act as gatekeepers, establishing the boundaries of reasonable claims as a matter of law and protecting broader societal interests. Today, Common Good argues, there is a sense that anyone can sue for almost anything, and most Americans do not believe that the courts will protect them if they act reasonably. A 2005 poll revealed that only 16 percent of Americans would “trust justice” if someone brought a baseless claim against them.^[21] Common Good has brought together top legal scholars and judges to discuss how to reframe the roles of judges, so that they act not as neutral referees—deferring to whatever a party claims—but as representatives of the interests of society. In a Newsweek cover story in 2003 highlighting Howard’s arguments and Common Good’s work,^[22] then-Senator John Edwards challenged Common Good’s premise, arguing that civil court juries are “democracy in action.”^[23] Howard countered by saying that justice is supposed to be rendered by the rule of law, not a “mini-election” each time there’s an accident or disagreement in the workplace.^[24]
• Radically simplifying law. Common Good believes that laws must be understandable to be effective, and that they should set public goals and general principles while leaving implementation to designated officials. Instead of laws telling people how to do their job, Common Good proposes clear lines of accountability.
• Sunsetting old laws. The accumulation of law, Howard has argued, precludes democratically-elected officials from making critical choices. Congress must periodically revisit old laws, making new findings on their effectiveness and relevance.

Reform philosophy

Howard has focused on how modern legal structures undermine the ability of people to use practical judgment in daily choices. He has argued that for people who deal with the public, such as teachers and doctors, the effect of too much law can be paralyzing. He has posited that people who think about legal exposure no longer act on their best instincts, and instead focus on conduct that will provide objective markers in case there’s a dispute, such as the practice by physicians of “defensive medicine.”^[25]

The core flaw in the modern law, Howard argues, is the premise that law can dictate correct behavior by specific rules, and can determine the correct course of conduct by objective evidence in a trial. Law in a free society is supposed to set outer boundaries of unreasonable behavior, not be a multiple choice test or an ordeal by trial whenever there’s a dispute. These boundaries of law are supposed to define and protect an open field of freedom, Howard argues—to set “frontiers, not artificially drawn, within which men shall be inviolable” (quoting philosopher Isaiah Berlin). Today, Howard argues, those legal dikes have burst, so people wade through law all day long. Instead of looking where they want to go, they go through the day looking over their shoulders.

Howard argues that the flawed conception of law as a way to compel correctness manifests itself in the assumptions of modern legal orthodoxy:

• Making law too detailed is just a version of central planning—forcing both regulators and the regulated to “go by the book,” whether or not it makes sense. “Zero-tolerance rules” in schools compel principals to suspend young children for pointing their fingers like a gun.^[26][27] The solution, Howard argues, is for law to set goals and general principles, so people can use their judgment within legal parameters, and if there’s a disagreement, argue over what makes sense rather than over formalistic compliance.
• Letting people sue for anything injects fear and defensiveness into ordinary interaction—so that teachers, for example, are told never to put an arm around a crying child.^[28] The solution, Howard argues, is for judges to act as gatekeepers of reasonable claims, making rulings as a matter of law to define the boundaries of what people can sue for. Today judges see their job as neutral referees letting litigants claim almost anything. Tort reform—generally limiting claims—can reduce the exposure but does nothing to restore trust that justice will affirmatively defend your reasonable actions. Judges must have the authority to draw boundaries of reasonableness as a matter of law. Otherwise justice becomes a tool for extortion. We would never let a prosecutor seek the death penalty for a misdemeanor, Howard argues, so why do we let a private litigant sue for millions for a minor accident or because the dry cleaners lost a pair of pants.^[29]
• The accretion of law, Howard argues, has also paralyzed democracy. Lawmakers add thousands of pages of law every year but rarely take any away. Law has grown, like sediment in the harbor, until it is difficult for government officials to act sensibly, or balance the budget.

The essential paradox in Howard’s philosophy is that authority is essential for freedom. Only when the judge has authority to dismiss an unreasonable claim will people in society feel free in daily interaction to act on their reasonable judgment. Only when the official can use his common sense will government act sensibly, and be able to adapt to practical problems that constantly arise. Only when the teacher has authority to respond immediately to disorder can we build a culture of respect and order in America’s schools. The fear of abuse of authority has driven America to a hyper-legalistic society, which Howard argues causes constant failure and unfairness. Far better to have clear lines of accountability up a hierarchy—to appeal the judge’s unreasonable ruling, or fire the abusive official, than to prescribe in advance their decisions. By putting legal shackles on those with responsibility, Howard argues, we unintentionally put shackles on ourselves.

Awards

Howard has received numerous awards and honors for his legal reform and civic work, including the Presidential Citation from the American Medical Association (2005) and the Chamber Music Society of Lincoln Center Award for Civic Leadership (2007). In 1987, the Village Voice named him “one of New York’s heroes” for his successful leadership against oversized development projects. Howard has also been asked to deliver endowed lectures, such as the 2008 Lewis Powell Memorial lecture at Washington and Lee University.

Personal life

Howard and his wife Alexandra Cushing Howard live in Manhattan. They have four children.

References

1. "The Responsibility Deficit", David Brooks, The New York Times, 23 September 2010
2. Chris Anderson (TEDchris), Twitter, 22 February 2010
3. Chris Anderson (TEDchris) Twitter, 22 February 2010
4. Philip K. Howard, Life Without Lawyers: Liberating Americans from Too Much Law, W. W. Norton, January 2009 (book jacket)
5. "Litigation Nation", George Will, Washington Post, 11 January 2009
6. Philip K. Howard interview, The Daily Show with Jon Stewart, 18 November 2010
7. Philip K. Howard interview, The Daily Show with Jon Stewart, 2 May 2011
8. Philip K. Howard interview, The Daily Show with Jon Stewart, 9 June 2014
9. “The Truth About Philip Howard’s ‘Common Good’” p. 3, The Foundation for Taxpayer and Consumer Rights
10. “Imagining Life Without Lawyers”, Dahlia Lithwick, Newsweek, 31 January 2009
11. “Common Good Advisory Board”, Common Good website
12. “Browse Experts” NewTalk website
13. “Resolving Medical Malpractice Cases in Health Courts—an Alternative to the Current Tort System”, Robert Wood Johnson Foundation website, 1 October 2010
14. “Just Medicine”, Philip K. Howard, New York Times, 1 April 2009
15. “Health Court Principles” American Medical Association, June 2007
16. “Reform focus shifts to health courts”, Christopher Guadagnino, Ph.D., Physician’s News Digest, August 2007
17. “An Urgent Call for Special Health Courts: America needs a reliable system of medical justice”, Common Good brochure, 2004
18. "The Case Against Health Courts", Mehlman, Maxwell and Nance, Dale A., The Case Against Health Courts, April 1, 2007.
19. Letter from President Barack Obama to Rep. Nancy Pelosi, Rep. John Boehner, Sen. Harry Reid, and Sen. Mitch McConnell, p. 2, White House website, 2 March 2010
20. ,“Why Freer Schools Are Better Schools”, Philip K. Howard, Wall Street Journal, 25 March 2010
21. “New Survey Finds That Only Sixteen Percent of American Adults Trust the Legal System to Defend Them Against Baseless Claims”, Common Good press release, 27 June 2005
22. “Civil Wars", Stuart Taylor Jr,Newsweek, 15 December 2003
23. “Juries: Democracy in Action”, John Edwards, Newsweek, 15 December 2003
24. “Making Civil Justice Sane”, Philip K. Howard,City Journal, Spring 2006
25. “Health Reform's Taboo Topic”, Philip K. Howard, Washington Post, 31 July 2009
26. “Student suspended after finger gun incident”, KTRK-TV, 18 April 2010
27. “Ionia kindergartner suspended for making gun with hand”, Brian McVicar, Grand Rapids Press, 4 March 2010
28. “‘I’m Calling My Lawyer’: How Litigation, Due Process and Other Regulatory Requirements Are Affecting Public Education”, p. 6, Jean Johnson and Ann Duffett, Public Agenda, November 2003
29. “Lawyer's Price For Missing Pants: $65 Million” Marc Fisher, Washington Post, 26 April 2007

Bibliography

• Howard, Philip K. (1994). The Death of Common Sense: How Law is Suffocating America. New York: Random House (hardcover). ISBN 0-679-42994-8.
• Howard, Philip K. (2002). The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom. New York: Ballantine Books (paperback). ISBN 978-0-345-43871-3. (originally titled: The Lost Art of Drawing the Line)
• Howard, Philip K. (2009). Life Without Lawyers: Liberating Americans from Too Much Law. New York: W. W. Norton & Company (hardcover). ISBN 978-0-393-06566-4.
• Howard, Philip K. (2014). The Rule of Nobody: Saving America from Dead Laws and Broken Government. New York: W. W. Norton & Company (hardcover). ISBN 978-0-393-08282-1.

External links

• Common Good official website
• PhilipKHoward.com personal website
• Philip K. Howard’s correspondent page on TheAtlantic.com
• NewTalk official website
• Shall We Get Rid of the Lawyers? Anthony Lewis' review of Life Without Lawyers in The New York Review of Books
• Tort Retort Dirk Olin's review of Life Without Lawyers in Portfolio.com
• Too Much Law Guarantees Unfairness Stuart Taylor's review of Life Without Lawyers in National Journal
• Life Without Lawyers review in TIME
• Philip K. Howard at TED
  • "Four ways to fix a broken legal system" (TED2010)
• Philip K. Howard’s interview on The Daily Show with Jon Stewart (May 2, 2011)
• Appearances on C-SPAN
  • Booknotes interview with Howard on The Death of Common Sense, February 12, 1995.