Wednesday, February 14, 2007


While browsing the Internet, I stumbled across what looks like it might be an interesting book by Thomas F. Burke:

Lawyers, Lawsuits, and Legal Rights
The Battle over Litigation in American Society

The introduction and first chapter are on-line.

The thesis of Burke's book is that the litigious nature of American society is not as much a problem as it is often imagined. He contrasts the popular view:

Americans, it is said, have become whiny victims who sue at the first opportunity. These explanations share a common feature: they focus on the individual's decision to sue. From this perspective the problem is that Americans have chosen to litigate rather than tolerate their discomforts or settle their disputes amicably. The communal spirit and stoic temper that once kept Americans out of court have withered. Americans, this perspective suggests, have become a litigious people.

with the reality that there is very little evidence to support this picture of a sue-happy society: despite the anecdotes (which may be based vaguely in real cases, or invented from whole cloth) about crazy lawsuits, Americans rarely go to court.

  • only ten percent of Americans injured in an accident make a liability claim;

  • only two percent of injured Americans file a lawsuit;

  • only five percent of Americans who believe they have lost significant amounts of money due to somebody else's illegal actions file a lawsuit;

  • in the event of serious injury due to medical malpractice, only one in eight Americans make a claim.

As far as the data shows, these rates are comparable to those of other nations.

Burke also points out that the available data suggests that the "supposedly stoic pioneers of frontier America" were actually far more litigious than today's Americans.

Part of the reason for the disconnect between the image of Lawyers Gone Wild!!! and the actual reality is that there is a dedicated push by certain business interests to invent a litigation "crisis" to suit their own political and financial ends. This attack is virtually entirely on just one form of litigation, the personal injury (or tort) lawsuit, while ignoring forms of litigation that are equally or even more costly.

But as Burke explains, the role of litigation in the USA is significant, and goes back to the earliest days of the republic:

As sensational and unrepresentative as the litigation horror stories are, they do reveal one important truth: the range of matters that can be litigated in the United States is broader than in other nations and growing each year. Forms of litigation that are unknown elsewhere have in the United States become significant avenues for political controversy and even social change. [...] From coal mines to high schools, administrative decision making to workplace regulation, comparative research has shown that the United States relies more than any other nation on lawyers, rights, and courts to address social issues.

Litigation, it seems, isn't an accident in the USA, it is a consequence and side-effect of the deliberately fragmented and decentralized structure of the American government.

One topic which particularly interests me is the conflicts between what we as individuals need and what we want, and the conflicts between those and the needs of society as a whole. The controversy over socialized solutions demonstrates this:

In litigation, problems appear as discrete disputes between individuals. When, for example, your car is hit by a careless driver, both the problem and the solution seem clear: the numbskull who hit your vehicle should be punished by a lawsuit. Replacement reforms reconceive individual conflicts as social problems. So, for example, "no-fault" auto insurance is premised on the view that accidents are a predictable social hazard produced by automobiles and that the problem is best solved not by punishing individual drivers but by pooling the risk of accidents through the most efficient insurance system possible.

No-fault insurance schemes (like that operated by Australia's RTA) seems to be economically more efficient than litigation. Nevertheless, they are often resisted by those who would benefit the most because of the perception that they protect people from their own misdeeds. The tendency towards that sort of disconnection between reality and perception is, in my opinion, one of the deepest and most fundamental crises facing the human species. Until we learn to make decisions based on What Is instead of What We Imagine, we're going to stumble from foolish error to foolish error.

No comments: