The Price of Fear

Driving home recently I noticed a young lady dragging a very heavy-looking suitcase behind her.  It was swelteringly hot outside, the sidewalk was badly maintained, and she was clearly in a hurry, and my immediate reaction was to stop and offer her a ride.  Instead, to my shame, I drove past without stopping.

Why?

Because I was concerned that she might misinterpret my kind offer as something more sinister and call the police.  Giving a ride to a solo woman is just not something one does anymore.

Twenty years ago I would have stopped without a second thought, so what has happened to drive us to the point where people are afraid to lend a helping hand?

I believe it is because “The Law” has become something that cannot be relied upon to behave predictably and, in the process, has become something that destroys trust and stifles creativity.

“The Law” can be a powerful driver of human behavior, and when laws are permissive and easy to understand, society and business can flourish.  But years of highly publicized frivolous lawsuits has given people justifiable cause to be fearful.  I could give examples but…there is no need, everyone has their own favorites.

In reality, the number of successful crazy cases is small, but they change behavior.  For example, after a highly publicized suit against Microsoft, I was not allowed to keep any consultants on site for more than 9 months, even though it took those consultants between 3-6 months just to get up to speed.  Inefficient and unnecessary, but a response to fear of “The Law”.

Laws that are overly punitive affect us every working day. For example, my job at a brokerage firm entails solving problems, and the Internet is a powerful source of information.  But, many years ago, the SEC put in rules to help curb insider trading. These rules state that all communication must be captured, stored and monitored.  Cell phone technology has since made it so easy to circumvent this monitoring that this rule is now completely obsolete, but the rule still exists.  The net result?  I cannot access websites that would help me do my job, and brokerage houses spend millions of dollars each year capturing and storing unnecessary emails and phone calls.

This is not something that happened overnight, and has been largely driven by our desire to be fair to everyone.

The problem is that as each new situation arises, people feel compelled to create another rule to cover that situation, with the result that “The Law” has become bloated, overly complex and something that no-one can understand.   It is therefore feared by the common man.

I was taught that laws are there to protect our freedoms.  But our current state is not a formula for security; it is a formula for paralysis.

This fear, this paralysis, is costing us in more ways than we realize.  It is costing us in real dollars, e.g. malpractice suits are driving up the cost of insurance and forcing doctors to run vast numbers of unnecessary tests just to protect themselves.

More importantly, it is costing us in lost competitiveness.  The pioneering spirit, that drove America to always be first, has been badly eroded because no-one wants to take chances anymore.  Why bother when any success you might have will just makes you a target for law suits?

We have created a society where mistakes are no longer tolerated.  And, while this sounds good on the surface, the other side of that coin is that we have lost the ability to innovate.  To paraphrase Sir Ken Robinson “Being wrong isn’t good, but if you are not willing to be wrong you will never create anything original.”

We urgently need this situation to change…but how?

We need to listen to lawyers like Larry Lessig and Philip K. Howard who tell us that:

• We need to create laws that can be understood by anyone.  It should be something we can internalize, and should be based around expected norms in society.  We need to replace the libraries of law books with a set of principles and goals that people can agree on.
• We should judge laws by their effect on society as a whole.  We can no longer afford to run our society by the lowest common denominator.
• We need to put common sense back into the equation by allowing our judges to be able to make judgments based on what most reasonable people would see as acceptable.
• We need to encourage fair re-use of content, ideas and technology – to allow people to “stand on the shoulders of giants” and build new things from what has gone before.

We are living in a world that is changing faster than any time in history, and “The Law” will never be able to keep pace in its current form.  If America does not embrace these kinds of changes we will, quite simply, be left behind as the rest of the world innovates and creates around us.

The Constitution is only about 7,000 words long, and seems to have worked well in the past, but only because people were allowed to interpret how this applied to different situations.

By putting the human element back into the equation, we can create laws that evolve naturally.  Such laws would enable us to save money on medical costs, support new business growth, and won’t stifle innovation.

This is my hope.

And, perhaps, if we have the courage to make these changes, we might one-day find ourselves in a society where helping a young lady carry a heavy bag does not carry with it the fear of arrest.