Monday, March 06, 2006


My friend Michael is looking for a job as a faculty member at a small college. He's already had an offer of a tenure-track position at Alpha College back east. On Friday he heard from St. Beta College out west, who also made him a tenure-track offer. He liked Alpha College all right, but he more or less "fell in love" with the people and environment out at St. Beta. Michael wasn't quite prepared to accept St. Beta's offer on the spot (he is interviewing at Gamma University and at one of the campuses of an eastern state university system this week); but he would certainly choose St. Beta over Alpha. The question was whether to call Alpha immediately and decline their offer.

Michael is under no obligation to do this right away, since he has two weeks to decide on Alpha's offer. On the other hand, it would be the nice and thoughtful thing to do, since it would allow the good folks at Alpha to make their offer to someone else as soon as possible. Yet my friend had a nagging doubt. Sure, he'd talked to the folks at St. Beta. He'd even spoken to the dean. But what if something happened and the St. Beta offer somehow evaporated? If he'd already said "no" to Alpha, he could be stuck without a job.

I hasten to add that there are no indications that St. Beta might do this. It is a financially sound college with apparently trustworthy people running things. Michael got no "bad vibes" at all during his visit there, which is one reason he is so excited by the job offer. He was just wanting to be sure to guard his interests. I thought his question over and told him that I had never known of a faculty job offer being withdrawn in similar circumstances. Because this had such a low probability, I advised him to call Alpha right away and turn them down. I added, "One of the benefits of living in a litigation-crazed society is that a college like St. Beta would not do that. They know that it would expose them to a lawsuit."

I had occasion to remember this on Saturday morning. My daughter was going with the high school orchestra down to the city (an hour's drive) to participate in an orchestra contest. The week had been a busy one and we had not really made any weekend plans; but when the time came we thought it would be fun to pick my daughter up after her contest, go someplace nice to eat, maybe take in a movie or do some shopping, and come back home. My daughter did not think this would be allowed. Pish-posh, said I, or words to that effect. I wrote a note making a request to let her come home with us, and took her on Saturday morning to meet the bus at the high school, so that I could speak to her director.

Sure enough, my daughter was right. The orchestra director was apologetic, but she told me that, without the signature of a school administrator (which we could have gotten if we'd made our plans earlier in the week), they could not allow my daughter to be picked up by anyone else. Instead, she would have to return on the bus with the other students.

"Told ya," said my daughter.

"You mean," I said to the director, "that you can't even let her own parents bring her home?"

"That's right," the director said. (You could tell that she didn't like saying this.)

"Since when?"

"Since about a week ago. It's a new policy."

The students who were sitting and standing around had fallen silent and were watching us. Watching me, in fact. I am usually a jovial and mild-mannered sort of fellow in public, but I was clearly a bit irritated, and they were all obviously wondering if they would be treated to a rare glimpse of a Grown-up In Full Wrath. "Well," I said. "I do hope you convey to the administration that I think they are being a bit ..." I hunted for the right word. "... a bit rigid about this."

"Actually," she explained, "it was the insurance company. They insisted."

Of course. "I know it isn't your fault," I said. The family outing in the city was canceled, and the orchestra director and I parted on amicable terms. Nobody was particularly happy, except perhaps the insurance company; but there it is.

We live in a remarkably litigious society, and this affects us in ways that we don't always recognize. The main result of it, I think, is fear.

Fear is not all bad. Because my friend knows that St. Beta College would fear a lawsuit if they did him wrong, he can be more confident in their good behavior. But fear is not all good, either. Because the local school district and its liability insurance provider fear a lawsuit, a responsible teacher cannot agree to a reasonable request. She did not have the authority to do so, because if something went wrong -- however remote that possibility in this particular case -- the school district might be liable.

Defenders of our system of civil law, of torts and personal injury law and liability and all that, like to point out the undeniable benefits that spring, as in the first instance, from the ability of individuals to challenge institutions in court and make them pay for their misdeeds. It's a vital tool for ensuring justice for the little guy. And my complaint about the school administration was really only about a minor inconvenience. Would I rather that they were careless about my daughter's safety?

But that isn't the whole story, is it? Compare this to the criminal law. It is a good thing that there are laws against theft. But how does this law affect me? Because the police do their best to enforce this law and punish those who violate it, I am to some extent protected from thieves. I am also not a thief myself. On the other hand, I wouldn't say that I avoid robbery because of the law against it. It is better to say that I agree with that law, that I think it is reasonable and just. In addition, the law is enforced in a pretty fair and sensible way. So the effect of the law against theft is liberating, not confining. I live my life in the most carefree way you can imagine, just doing things that I want to do all day long and never worrying for a second that somebody will throw me in jail for stealing. It's a wonderful thing. And it is all because that law is so very easy to understand and to follow, and that the legal system is so uncapricious in its enforcement of the law.

But what if the law about theft was so complicated and unpredictable that almost any simple daily transaction might go wrong and land you in jail for theft? What if there were no real guidelines for the punishment for theft, so that the sentence might be anything from one month to life? Suppose that just living your life and acting like a reasonable citizen was not always enough to keep you out of criminal court on theft charges? Even if the probability of an actual prison term was pretty small, that possibility would affect everything you did. You would keep signed receipts for everything, even bubblegum from the store. You'd avoid some kinds of transactions altogether, because you just never know. Shopkeepers would have to have expensive insurance to pay for potential legal costs. And a huge amount of common everyday informal stuff -- including many generous and happy relationships -- would simply come to an end. Why? Because people would be afraid.

My point is that such a situation would be, not only less desirable, but also less lawful. In a free society built on the idea of ordered liberty, the law exists so that we can go about our lives without fear. Yet my story is only a slight exaggeration of the real situation in which we have gotten ourselves with regard to liability and lawsuits.

Lawsuits are, in a curious way, an essentially libertarian approach to maintaining civil order. They are a mechanism whereby individuals enforce good behavior, in institutions and each other, via market forces. Let the market do its magic and behold! Companies make safer products, doctors provide more conscientious care, neighbors are more reluctant to do you harm, all through personal choice and market incentives. Some of this analysis is quite accurate. In the actual event, though, the libertarian approach seems to promote, not liberty, but fear. This is as compact -- and compelling -- an argument against libertarianism as I have ever come across.


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