Editor's note: The following is a condensed version of a speech by Tire Association of North America Executive Vice President David Poisson at the group's off-the-road tire conference in Miami Beach, Fla., Feb. 20.
It's good to be back here at OTR '99. It's good to be out of Washington. And perhaps most of all, it's good to be through with ``Monicagate,'' the impeachment proceedings, the House managers, Linda Tripp and all of the others who've been polluting the airwaves....
It's hard to believe all of this got started because the Supreme Court decided there was no problem with (the Paula Jones) case proceeding while the President was in office because they didn't believe it would distract him from his normal duties.
But for the average American, this whole mess became more than just a distraction. It became one colossal intrusion in our lives. And perhaps more than that, it showed just how far we as a society have allowed our government institutions to insert themselves in just about everything we say or do.
If you think I'm exaggerating, think about golf. Just about a year ago, a federal judge ruled that Casey Martin has a legal right, under the Americans With Disabilities Act, to play the PGA Tour using a golf cart because he has a congenital circulatory disorder that gives him pain and swelling in his leg.
Government by lawyers?
What we have going on here is government as micromanagement.
It is government that presumes every individual is entitled to a safe, clean and perhaps most importantly, fair personal environment. It is, for lack of a better term, the ``lawyerizing'' of our society.
I say that because in the past, when government sought to direct how we lived our lives, it did it with big agencies that developed sweeping rules aimed at making life better for the average citizen. But today what is happening is the courts are issuing countless thousands of decisions all aimed at deciding even the minutest details of everyday life.
Don't misunderstand me. I believe every bit as much in the rule of law as the next person. I labor under my own handicap. I too am, after all, a lawyer by training. But what I am concerned about, and what I believe each of us has to be concerned about, is government run amuck—government that is less accountable, less rational and more intrusive than anything the New Deal or the Great Society ever tried.
In the last 30 or so years, traditionally narrow tort laws have been broadened to allow people to collect damages for more harms and for more reasons. In fact, from the mid-1960s to the mid-'80s, tort costs more than doubled as a share of the economy—to more than 2 percent—with lawyers getting about 30 percent of the take and plaintiffs less than half.
Regulating through the courts has become Washington's default mode. Why bother with a new federal agency to regulate health care, when you can just pass a ``patients' bill of rights,'' leaving citizens to their own devices to litigate what those rights provide and protect against.
Let me give you an example of what I'm talking about here. Suppose that instead of a Clean Air Act, with all of its countless rules about sulfides and scrubbers, we just had a Clean Air Bill of Rights that said something like: ``No corporation or business establishment shall impose an unfair, excessive or unreasonable burden of air pollution on any person or group.''
Then instead of EPA we just granted everyone the right to sue for large sums of money. What we'd be doing is giving every individual the right to a clean set of lungs and then leaving it to juries to decide what that means.
Instead of Los Angeles being a big patch of air containing 10 million people, Los Angeles would be 10 million pairs of lungs—each with its own lawyers.
This is the type of foolishness I believe is putting such a significant strain on government and its relationship with the governed.
Follow the basics
It isn't like we don't know what works. We do. Some basics that need to be followed in any successful regulatory scheme are:
1) Set the overall goal before putting particular rules in place. In other words, know where you want to go before setting out, or you well may end up wherever you happen to be headed at the time.
2) Target outcomes, not process. Success has to be defined in terms of how much pollution is reduced or injuries on the job eliminated, not by how many rules have been written or fines assessed.
3) Look at the big picture. In any human activity, there are costs and benefits—and there must inevitably be times when we decide to forego certain benefits because the costs are simply too high.
4) Propose all rules in advance and give anyone and everyone affected by the rules a chance to comment.
5) Write down the rules and make them clear and easy enough to be complied with.
6) Don't give bureaucrats a financial stake in the fines that are assessed. Otherwise, they may just turn the regulatory process into a scheme to build their dynasty.
7) And last, allow for at least arm's length review by the representatives of the people, our elected officials, so the regulators are held accountable.
Now with this list in hand, let's look again at the hypothetical Clean Air Bill of Rights I just described. If you notice, it has none of these elements. There's no one overriding goal. Each person has the right and the opportunity to litigate how clean is clean.
Under our current regulatory scheme, EPA can say air that is clean 95 percent of the time is clean enough. But if each person can go to court to insist on his or her right to have a clean set of lungs, what court in America is going to say: ``Because other people's lungs are clean enough, you're not entitled to clean lungs yourself?'' None.
Clear rules, known in advance? No way. Every day another court, every day another decision—sometimes directly in conflict with one another. Disinterested regulators? Can you say ``contingency fee?''
What happens with regulations like our proposed Clean Air Bill of Rights? Well, some good things, and some bad. Some juries find for plaintiffs who have been exposed to high concentrations of lead. Others find for plaintiffs coming into court alleging that trees pollute.
Some courts decide that ``unreasonable burden'' means a high likelihood of lung disease, while another says it means more pollution in one area than another.
Over time, precedents set in, but then new legal theories begin to crop up. Pretty soon, no one knows what the rules are anymore, because no one knows what the next jury is going to do, or what new legal theory the plaintiff is going to cook up
For example, Aloha Airlines is being sued for refusing to hire a pilot with vision in only one eye, even though it's ...almost certain that if a plane piloted by this pilot were to crash, Aloha would be sued.
The question is, should we allow lawyers to regulate the best method of helping the disabled, cleaning up the environment, curbing teen smoking and cutting down on handgun-related violence?
Win at any cost
Goals set by bureaucrats at least can periodically be reviewed to determine whether we're getting any closer to where we want to go. But litigation in the courts doesn't start out with any other goal than winning. There is no relative weighing of cost versus benefit. The rules are anything but unambiguous. And there is certainly no room for public comment or accountability to publicly elected officials.
In other words, government by litigation—or as I referred to it earlier, the ``lawyerization'' of the regulatory process—violates everything we know about how to run a good regulatory process.
Yet it goes on. And not only is it pretty much unaccountable, but it also is into everything you can possibly imagine.
This year the Supreme Court in the Oncale case said a male football coach may smack a player on the behind as the player runs onto the field, but may not smack a secretary—male or female—on the behind in the back office. Why the playing field but not in the office? Here's what the court provided by way of guidance:
``The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.
"Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or rough housing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.''
Did you follow all of that? In other words, the court is saying: ``We can't really define what it is, but we'll know it when we see it.''
Ultimately, what that means is we have to dissect every joke, every come-on, every glance, every invitation out, to determine from these pieces of evidence whether a hostile workplace exists.
The focus seems lost. We're less and less concerned about whether there is less harassment, less discrimination, less inequity in the workplace overall, and more and more concerned about what one individual thinks is fair.
One of my favorite examples of this is the recent case involving a Hooters restaurant, which as some of you know is famous for both its buffalo wings and cute waitresses—not necessarily in that order.
The company was recently required to pay $3.75 million—approximately half of which went to lawyers—after they'd turned down three men for waitressing jobs.
The behavior police
The ``lawyerization'' of our very lives is taking its toll.
Our government is now actively in the business of telling us how we have to behave: policing jokes at work, ordering colleges to set up as many press interviews for female athletes as for males. Fining the producers of Melrose Place $5 million for refusing to allow a pregnant woman to play the role of a prostitute—and wearing a bikini, no less.
Never in our history as a nation has government concerned itself so minutely with the detailed interactions of everyday life. Never have we looked to government to do as much to ``even the playing field.'' Perhaps more accurately, never have we expected the playing field to be more even.
I can't say with any accuracy how much the process of government by litigation is costing our country. No one really is keeping tabs on it. But the greater cost may not be in what is handed out by juries to plaintiffs, and by plaintiffs and defendants to their lawyers. No, the greater cost is in government's loss of respect for its people, and people's loss of respect for their government.
That, it seems to me, is the great lesson of what we have affectionately come to refer to as ``that mess up there in Washington.''
Take back our country
There must be change—of a type that has yet to arrive on the scene —or this system of litigating every issue on which we disagree will collapse of its own tremendous weight, just as any form of government that lacks rationality and credibility inevitably does.
But for that type of change to occur there must also be another change—a change in the way we view our role as citizens of this great country of ours. 1998 saw the lowest voter turnout in more than 50 years. Only 37 percent of eligible voters cast ballots—the lowest since 1942 during World War II.
Ladies and gentlemen, nature, as the old saying goes, abhors a vacuum. If we don't take back our country, it will be taken from us. The ``lawyerization'' of our society that I've been describing to you will continue, and one day soon we'll wake up to find that many of the freedoms we thought we had were taken away while we slept.
Politics is not a spectator sport. We might have begun to feel like it is, after the ``all-Monica, all-of-the-time'' barrage we've been exposed to on our radios and televisions and in our newspapers for the last 14 months.
But it is our responsibility to get in the game, to make a difference, to vote for a government that, as President Carter used to say, is as good and as decent as its people.