It
appears that American legal society has mastered the art of imputing individual
behavioral thought processes and responses within the litigation stage. One
need only take a minute to realize that the torts of, let us use, negligence,
recklessness, and infliction of emotional distress, all compel a legal team (from
the filing to the ruling) to analyze the wrongdoer’s and victim’s psychological
processes before and after a specific moment in time in order to evaluate
damages and make the plaintiff whole. This collusion of law and cognition, only
after an individual has far surpassed the potential to lump, serves maximally
to redress wrongs, deter injurers, redistribute loss, and enact some form of
justice, perhaps allowing the rest of us to sleep just a little better at
night. As David Engel points out, however, it is the psychological consideration
of the human mind and how society and culture interact with individual
decision-making, which will prove more operative in both debunking the myth of
litigious America and reforming the tort system which has counter-intuitively
placed us in our current predicament.
The fact
that American legal society so aptly applies human behavioral activity into the
determination of an outcome is not so mysterious; law curriculums and
legislative reform focus on the litigation stage itself and not on the steps
that lead a victim to file a claim. Practitioners and scholars of the law ought
to turn their attention to the factors, which Engel delineates in about 200
pages that repel a potential litigant from legal proactivity. In his eighth
chapter, The Social and Cultural
Environment of Injuries, Engel invites his audience to ponder, “how the
ideas and perceptions of injury victims emerge from the organic connection of
mind and culture” (p. 127). Personally, one of the most provocative opinions
Engel offers his readers is the number of environmental factors and
conceptions, disseminated through the media, which explain why the dog does not
bark. “These include the naturalization of injury and the emergence of value
systems that encourage self-sufficiency or stoicism rather than the demand for
a remedy” (p. 145).
Contemplation
of these factors in the context of civil dispute resolution is something to
which I am foreign and by which I am intrigued. The notion of self-sufficiency is
one that I associate almost immediately with American, or more broadly, Western
capitalism. The amalgam of struggle, followed by perseverance and achievement,
respectively, and the self-confidence that results, equates to
self-sufficiency; this formula is one, to which much of the capitalistic world
arguably owes its entrepreneurship, skill, and wealth. Engel asks us to
implement this formula to the world of litigation, or to the steps preceding it.
In doing so, it becomes apparent that independently overcoming an injury,
without involving the system, “helps” an individual avoid the title of a
“socially destructive parasite.” This, as the book points out, is the better
approach according to society, so as to remove the threat to self-sufficiency,
the “moral fiber of our nation.” It appears therefore, due to Americans’
obsession with this notion of resilience, the idea of deterrence, one of the
primary objectives of tort law, is met with reluctance and ignorance to the
fact that lumping can lead to risky behavior.
The second
factor, on which I wish to briefly harp, is that of stoicism. Where my
automatic association of self-sufficiency comes from growing up in America, my
beliefs about stoicism have more to do with my Greek heritage. Stoicism is a
school of Hellenistic philosophy, one of personal ethics informed by a system
of logic. My immigrant parents inspired this mode of addressing life by
teaching fortitude and pride, pride in success and failure. Before reading
Engel’s book, I had not considered that individuals are hesitant to make claims
and encourage other injury victims to file out of fear of diminishing the value
of stoicism. Individuals do take great pride in solving their matters absent
assistance and believe that doing so harbors character and introduces successful
behavior. Both self-sufficiency and stoicism are vital to society, but in
positioning these values above rectification and deterrence, society
unknowingly turns a blind eye to the influence of those with deeper pockets,
who are calculatedly embedding the narrative of forbearance in society, perhaps
to society’s detriment.
We can
easily see then, that legal stoicism is having a moment, and we as dutiful
students of the law, would benefit in brainstorming ways to get it out of its
funk. If the circumstances are as Engel has described them, then perhaps our
tort reform ought to focus on psychology first and the law second. Reform
efforts should aim to adjust law school curriculums in order to encompass the
entirety of the litigation process. It can only be beneficial to attempt to
study the laws, which govern our society from a more holistic perspective. Such
an approach will induce professors and students alike to more precisely
understand the factors that fuel our tort system. Those factors can also lend
to a greater understanding of each individual tort itself and the psyche of the
injured and injurer at the time of an accident. Such an inclusive perspective
can then contribute to more effective remedies and compensation, ultimately
satisfying the overarching goals of tort law.
If we
start with tweaking curriculums to incorporate a little psychology, we can
inadvertently begin to alter the narrative running through American society,
which has been framed in a way more favorable to the big guys. Armed with a
better understanding of what causes victims to lump, law students, professors
and law practitioners can spearhead the movement to refocus attention on the
victims and how their injuries are deserving of compensation. It would be most
effective to do this through the technology we have been blessed with today. As
one of the most potent sources for disseminating ideas, we would be smart to
take advantage of the expressive freedom afforded to us by social media outlets
and utilize them as the virtual meeting-place to start talking about changing
the way we think about injuries and our injured fellow citizens, igniting a new
cultural perspective on the subject matter. If we are successful at our
attempt, which I would imagine would take a few tries, those who are injured
will begin to seek professional opinions on their situations and those who must
be held accountable for their wrongs will be, consequentially exacting the most
ideal form of justice.
Talk of
reform is often met with disdain, as altering the status quo is never an easy
venture. Nonetheless, the reform that I have herein proposed starts at the
grassroots level, which I believe makes it a feasible approach. Making some
alterations to the type of educational information that is available to law students
will produce exposure to psychological responses to injuries, which will have
lawyers, professors, and all of society listening. Perhaps this is wishful
thinking, but sometimes just a better understanding of the inner machine of the
human will induce the law to just fix itself.
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