Recently, at this year’s TED conference, attorney Philip K. Howard gave a presentation entitled “Four Ways to Fix a Broken Legal System”. This presentation has gathered some notoriety and, in certain circles, has gone viral. But, like any example of critical thinking, it is important to push through the rhetoric and examine matters a little bit more closely before blindly following along.
By way of background, the TED conference is an annual get together hosted by TED, a private US foundation. TED, which is derived from the phrase “Technology,Entertainment, Design” is designed to foster thinking and, in fact, has a tag line of “Ideas Worth Spreading”. Obviously, a noble cause and one that should be promoted and encouraged.
However, just because something is said at a TED conference does not necessarily mean it is so. Howard’s talk is predicated on several simple concepts, many of which are very easy to support. For instance, the effect of law is best viewed on society as a whole. Viewing it in a microcosm such as individual situations is somewhat akin to staring at the clogged pores on the nose of an attractive person. However, Howard’s insistence that it is necessary to restore simplicity in the law and the authority to judges to apply the law is simply mistaken.
As pointed out in a wonderful essay by attorney Maxwell S. Kennerly, modern day tort law is predicated primarily upon the traditional English common law. As any first year law student will tell you, traditional English common law is anything but simple. It is a convoluted and complex maze of evolutionary thinking. It is anything but simple. More important, though, is the notion that we must “restore authority to judges and officials to apply law.” Under English common law, judges and officials had no such authority. Rather, the application of law was done by the jury. This is a right that has lasted for century after century and, as best we know, was first embodied in the Magna Carta. This right to a jury has also been made an integral part of the United States Constitution and is ingrained in our society.
Accordingly, there is no way that we can “restore” authority because there never was any such authority. While, admittedly the modern judicial system is in need of help, it is frequently a chicken and the egg situation. Is the judicial system the way it is because of society, or is society the way it is because of the judicial system?