By George F. Will
Washington Post
Sunday, June 2, 2002; Page B07

Americans are not losing their minds, but they are afraid of using their minds. They are afraid to exercise judgment -- afraid of being sued.

In 1924 Will Rogers said Americans thought they were getting smarter because "they're letting lawyers instead of their conscience be their guide." Rogers was from Oologah, Okla., where in 1995 a child suffered minor injuries when playing unattended on the slide in the town park. The parents sued the town, which subsequently dismantled the slide.

Products come plastered with imbecilic warnings (on a baby stroller: "Remove child before folding.") for the same reason seesaws and swings are endangered species of playground equipment: fear of liability. A federal handbook morosely warns: "Seesaw use is quite complex." So seesaws are being replaced with spring-driven devices used by only one child at a time. Swings? Gracious, suppose a child falls on the -- imagine this -- ground. The federal handbook again: "Earth surfaces such as soils and hard-packed dirt are not recommended because they have poor shock-absorbing properties." No wonder a Southern California school district has banned running on the playground.

The early 20th century playground movement aimed to acquaint children with mild risks. In 1917, a movement leader said: "It is reasonably evident that if a boy climbs on a swing frame and falls off, the school board is no more responsible for his action than if he climbed into a tree or upon the school building and falls. There can be no more reason for taking out play equipment on account of such an accident than there would be for the removal of the trees or the school building." Today New York City cuts branches off trees so children will not be tempted to climb.

Today, when a patient complains of a headache, a doctor, even when knowing that an aspirin is almost certainly the right treatment, may nevertheless order an expensive CAT-scan. You cannot be too careful in a country in which six Mississippians have been awarded $150 million not because they are sick but because they fear that they someday may become sick from asbestos-related illnesses.

Michael Freedman reports in Forbes magazine that 42 percent of obstetricians are leaving the Las Vegas area now that 76 percent of that city's obstetricians have been sued -- 40 percent of them three or more times. Pharmaceutical companies are limiting research on "orphan drugs" that treat serious but rare diseases because tort liability is so disproportionate to possible return on investment.

"Dismissing a tenured teacher," says a California official, "is not a process, it's a career." Which is why in a recent five-year period only 62 of California's 220,000 tenured teachers were dismissed. The multiplication of due-process protections has turned jobs into a property right, undoing the progressive movement's dream that a civil service would end the tradition of treating public jobs as private property. In 1998 Pennsylvania reported that in the preceding 40 years only 13 teachers had been removed for incompetence. In New York state, terminating a teacher costs an average of $194,000 in legal bills -- the cost in time and energy of school officials is extra. Termination is a seven-year process in Detroit.

By the mid-1970s, writes Philip K. Howard, due process "had become a kind of legal airbag inflating instantly" to protect individuals aggrieved about any adverse encounter with authority. Howard's book, "The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom," is a compendium of the social havoc caused by the flight from making common-sense judgments.

Americans now "tiptoe through the day," fearful that an angry individual with a lawyer will extort money from society while imposing irrational rules on society.

Oliver Wendell Holmes defined law as "prophecies of what the courts will do." But Howard rightly says that "nobody has any idea what a court will do." A Delaware River canoe rental company is found liable on the theory that it should have stationed lifeguards along miles of river bank. After a church was sued -- unsuccessfully -- because a parishioner committed suicide, many churches began discouraging counseling by ministers. When any harmful event can give rise to a lawsuit, the result is "law a la carte," changeable from jury to jury.

The cost of this -- in money, health, lives, self-government and individual liberty -- is staggering. Howard, a thinking person's Quixote, has founded (with Shelby Steele, Mary Ann Glendon, John Silber, George McGovern, Newt Gingrich and others) Common Good, an organization "to lead a new legal revolution to restore human judgment and values at every level of society."

To the barricades! The address of the barricades is:

www.ourcommongood.com

(c) 2002 The Washington Post Company