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Sunday, May 28, 2017

The Fear of Being Sued

     A wealthy society, like a wealthy person, is apt to err on the side of caution, an instinct akin to trying to protect a lead in games. But what's going on here is not the age-old tension between caution and risk. There's a third dimension of risk that never existed, at least not in ordinary daily choices, until recent decades: legal risk. In any social dealings, whether selling products, managing employees, running a classroom, or building a playground, there's a chance that someone might be hurt or offended. And in modern America that carries with it the risk of being sued.

     Dealing with legal risk is different from dealing with other risks because, instead of weighing the benefits and costs of a choice, it requires focusing on the lowest common denominator. A choice might be beneficial or productive but nonetheless carry huge legal risk. The playground could be perfectly suited for its purpose, attracting tens of thousands of children to healthy activity, and still be the source of liability whenever some boy decides to launch himself off the swing and breaks his leg--as is certain to occur from time to time.

     This is not a problem that takes care of itself. America has a public health crisis but doesn't know how to make the legal choices needed to let children to take the risks of growing up. We don't know how to say that sometimes things go wrong. This is an odd phenomenon, as if the adults fell on their heads and developed a kind of amnesia about how life works. The victim of an accident appears, demanding satisfaction, and we shrink back in legal fear.

Philip K. Howard, Life Without Lawyers, 2009

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