This hot war of Mutually Assured Litigation has inverted law's place in the social contract. "The rights our founders gave us," Howard notes, "were defensive in nature; they prevented people in government from doing things to you, like taking your home away."

A retribution-based society is not healthy. Institutionalized irrationality is not healthy. Employment suits comprise fully 10 percent of the federal docket, despite enjoying only a 15 percent chance of success. Risk aversion festoons our world with milk-carton photos of the missing.

"In fact," writes Howard, "the chances of abduction by a stranger are about as small as getting hit by a meteorite, and dramatically smaller than having an accident when riding in a car with your parents."

The central harm of surrendering to this neurotic legal autopilot, in Howard's view, is the loss of both accountability and freedom. The latter, he posits, "is just whatever's left over after everyone's made their legal demands."

It is axiomatic that society would rather free 10 guilty defendants than convict one innocent. But that's because liberty stakes are at issue, and that's why juries serve as the ultimate arbiters of guilt. In the realm of civil litigation, we have unintentionally adopted the proposition that it is better that 10 meritless suits be allowed lest a single worthy claim be dismissed.

If his analysis draws from a libertarian notion of freedom, Howard's normative response is, gasp, communitarian: Legislators and appellate courts should extricate due process from everyday life. He wants us to trade an unattainable procedural perfectionism for the restoration of social balance. "What people are allowed to sue for is public policy," he writes.

The author makes no call for loser-pays rules that would chill legitimate claims. And caps on damages, in his view, are far too blunt a response: "Tort reformers," he notes, "haven't even attempted to deal with lawsuits as manifestations of public policy, or to question how lawsuits get argued and decided."

To let teachers teach, doctors doctor, and supervisors supervise, we must let judges judge. Stop aspiring to jurisprudence as software. Howard calls for a model statute: "Judges shall take the responsibility to draw the boundaries of reasonable dispute as a matter of law, applying common law principles and statutory guidelines. In making these rulings, judges shall consider the potential effects of claims on society at large."

Risk commissions can help at the quotidian level, and specialty courts can help in areas of increasing arcana (like medical malpractice). But judges must don Rawls' "veil of ignorance" and imagine themselves in the position of both plaintiff and defendant to reach generally pro-social outcomes.

Will we get bad rulings? Of course. But we have appellate courts. And the status quo has reduced certain walks of life to someone with deficit disorder, blinking in paralysis in a room that hasn't been cleaned for years. Judges must be social custodians, in both a philosophical and janitorial sense. They must dismiss facially nonsensical lawsuits, affirming litigation-free zones that return us to the land of the living.

Absent such rigor, we are left with runaway juries, untethered from precedent, becoming a collective ad hocracy. Their conclusions often create ripple effects like the externalities of an economic decision. We lose the predictability that H.L.A. Hart deemed essential to justice: "treating like cases alike."

As with health care, Howard calls for mediating citizen panels to restore the proper balance of teacher and employer authority. And he wisely perceives their limits in, for example, the realm of sexual harassment, wherein claims inherently turn on individual extortion rather than group claims and are, therefore, more appropriately adjudicated.

One of his proposed turns to informality, however, bears scrutiny: mediation. Such instruments can extricate much employment litigation from the courts, but they are also ripe for capture by the employer. Mediators have a vested interest in retaining their relationship with the corporation after the individual mediation is complete. (Any such regime, then, should require regular rotation of mediation service providers.)

Howard also might be a bit dewy-eyed on Washington reform, with his call for a citizen shadow government to overhaul the U.S. code and the fundamentals of health care regulation. And yet we can recall the success of the base-closing commissions of the 1990s and the impact of anti-smoking campaigns that have radically reformed public policy in our lifetimes.

Readers of Garrett Hardin's influential 1968 Science magazine article "The Tragedy of the Commons" will recall his central metaphor of cowherds maximizing grazing for their own animals and eventually destroying the shared pasture on which they all depended.

"Just as the defenders of laissez-faire hoped to be remembered as defenders of freedom, but ended up being remembered as apologists for industrial abuse," concludes Howard, "so too the age of individual rights may be remembered as a period of bullying by using law."

If this were all merely a backhanded way of enervating government, it would be disingenuous. But Howard is not championing libertarian nihilism. He's calling for rugged communitarianism. I'm in.

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