By Alexander Vitale
“What is it like to be a bat? What is it like for a bat to be a bat?” Thomas Nagel, What Is It Like to Be a Bat?, 83 The Philosophical Review 435 (1974). I was reminded of this question toward the beginning of Engel’s book regarding what it is like to be injured and to have pain and how these phenomenon are exclusive to the ones experiencing them. In fact the third chapter of the book focuses on real people’s description of pain because they are the ones who truly know their pain. It was this idea of exclusiveness of experience which shocked me most in Engel’s book; how the experience of pain leads to a form of dissociation when the person’s body seems “strangely other,” which in turn leads the injured to further isolate themselves. Because the pain starts to define them and because the pain is exclusive, other persons start to exclude the injured person, which all culminates into a self-blaming issue that promotes lumping. This pattern shows that conscious thought and control seems to play little in a person’s interaction with their own pain, and it is this interaction and lack of rational thought which surprised me the most. I never realized the extent to which the exclusiveness of injury leads to biases and false beliefs not only in those not injured but even in those who are the injured. The bias which surprised me the most was the substitution bias, though I knew about this bias before reading, it never occurred to me that when dealing with the question of "whose fault is it?," self-blaming is the easiest substitute especially because of the social isolation.
With this new information presented by Engel, I found it easier to believe the premise of his book and how the civil dispute resolution system in the United States does not seem too excited or willing to encourage those who have been injured. In fact to some extent the civil dispute resolution system in the United States seem to act as a hindrance to correcting the injuries that the system is meant to correct. Before I read Engel’s book I was part of the majority by which Engel refers, the ones who believed that the American tort system is overly active and to some extent “shady” in the colloquial sense. However this understanding was quickly refuted by Engel’s work, and I now see that the civil dispute resolution system in the United States is not as active or shady as I once thought. Also Engel’s approach does address the issue; though his view is idealistic in the extreme, it would create the best results for those who are unfortunate enough to find themselves injured and facing down the imposing and currently socially unacceptable option of claiming.
As I have previously stated I do agree with Engel’s analysis of the issue and also with his proposed solution. My only issue with his solution is how extremely idealistic it is. Attempting to change a social/cultural understanding and belief about something as complex as injury and pain is difficult enough, but adding the change in the social conscience toward the tort system makes Engel’s proposition very near improbable. That is why I find question three appropriate, “if you were able to wave a magic wand,” because one would need a magic wand to be able to successfully implement the changes that Engel calls for. Though I said I agree with Engel regarding the need for social/cultural reform regarding the social temperament toward injuries and the civil dispute resolution system in the United States that agreement is only insofar as that I agree that the social reform is needed to do what Engel wants, decrease lumping. However, if I were to have the magic wand, Engel needs to bring his vision to fruition; I would not use it to realize Engel’s solution. In fact I would defer from using the wand completely because it is my belief that it is only through a slow and steady march that the successful evolution of the tort system can occur. That is why I think having a socially hostile environment helps the tort system because the relative lack of claims allows for decisions to be made on a more thorough survey of the law and to produce a more pungent sense of justice. By this I mean that a shift in social sensibility of the tort system may strip the system of any remaining air of justice; by transforming the tort system from a process of making one whole again and punishing outrageous acts into a financial Skinner’s box for even trivial injuries. Coupled with the degradation of the prestige of the systems of justice, I believe the shift which Engel calls for would have unforeseen negative consequences on the injured persons and their respective support systems. By allowing the use of the tort system to become a social norm, people would be less inclined to rely on those they would normally without the social change. Thus the support system would crumble into a lack of support system and the justice system would be overly burdened because it would be forced to take its place. Over all I do agree that Engel sees the system of social and political ideas of the tort system as why there is a false belief that America is overly litigious. However I do not agree that because people are more likely to lump and that the false belief remains that the system of social and political ideas are broken and should be fixed.
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