Monday, April 16, 2018

Reflections on Engel

By Horatio Alger

Boy, Professor Engel has some axes to grind against reforming torts. His whole premise is wrongheaded: just turn on the evening news and watch all the crazy injury awards given by American courts. And what you can find on the Internet about sue-crazy people is nothing short of amazing – and the insane awards some people get! Figures… he’s a professor of law at one of those state universities, wasting good tax dollars.

Well, he did plug some figures into his book. He says that only ten percent of injuries result in some form of claim in America. He then compares this with numbers from England & Wales, finding a similar rate of claims[i]. He also compares the rate of actual litigation between America and Japan, finding that the American rate of litigation (two percent) is about five times greater than the Japanese rate (0.4 percent). So even his own numbers show that America is apparently near the top for claims and dwarfs Japan for litigation. Not surprising, if you turn on the news.

Professor Engel sure has some strange ideas about how people decide to sue[ii]. Daytime TV is chock-full of ads by injury lawyers – and who is it that watches daytime TV, anyway? Loafers and couch potatoes, that’s who: people living on welfare, just waiting to sue some enterprising businessman for his hard earned money. Yep, that’s what reforming these torts is all about: keeping America a great country by letting entrepreneurs work their magic.

Professor Engel spends a lot of time explaining “lumping.” This is basically what he calls it when someone decides not to sue after an injury. As if anyone needs to explain NOT suing… jeesh – spoken like a true lawyer! “A whoooooooole lotta lumps” for me, thanks[iii].

Reading this book does let you know how academics are trying to foul up the movement for tort reform, though. First, by trying to mystify something as easy to understand as cause and effect; then by talking about social and cultural “environments” – pure commie stuff, completely alien to America’s exceptional spirit of ruggedly self-reliant individualism[iv]. Engel even goes on about how the “haves” are pulling one over on us yokels. If this isn’t coastal elitism, then nothing is.

Engel did get me thinking about how to fix the tort system, though. He’s dead wrong about regulation being able to fix anything, but it’s reassuring that even he thinks that this path is blocked. For reforming torts, there should be a hefty fine paid by people who bring frivolous lawsuits against good American companies. I mean, how am I supposed to get motivated to start my thriving business when I see it all being taken away in court by sue-happy freeloaders?

Another way to fix torts is to tighten up on negligence. If Engel is right when he says that negligence was brought in to help American industry grow through limiting frivolous lawsuits by shirkers and agitators, then raising the standard for culpability seems to be just what the doctor ordered. In today’s world where companies compete globally, we just can’t afford to be hamstringing our best companies. When other countries are helping their companies to compete, we cannot suffer raising the costs of doing business here.

That’s how we should be reforming the tort system, so that we can make American companies competitive again. Dollars should not be lining the pockets of lawyers, but instead should be flowing to employees as paychecks from booming companies that are unencumbered by frivolous lawsuits. This is what the movement of tort reform is all about: giving American companies the chance they deserve to compete and win across the globe. And when American companies do well, so do Americans. It’s probably never been said better than by Charles Wilson: “… for years I thought what was good for the country was good for General Motors and vice versa[v]."

[i] Engel, David M., “The myth of the litigious society” (University of Chicago Press, 2016): p. 30.
[ii] Engel: pp. 33, 70.
[iii] Merry Melodies (Bugs Bunny), “Rabbit’s Kin”: spoken by cartoon character Pete Puma (Oh, three or four). <>.
[iv] Engel: pp. 84, 138-43.
[v] Wikipedia, “History of General Motors.” <>.

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