The Myth of the Litigious Society: Why We Don’t Sue

By Cramer, Renée Ann | Law & Society Review, December 1, 2017 | Go to article overview

The Myth of the Litigious Society: Why We Don’t Sue


Cramer, Renée Ann, Law & Society Review


The Myth of the Litigious Society: Why We Don’t Sue. By David Engel. Chicago: University of Chicago Press, 2016.

This is a book to be grateful for. It is a joy to teach, and a wellargued corrective to previous ways of thinking about responses to injury. It is a humane and compassionate text, bringing attention to the embodied and emotional experiences of injury, and the role that these experiences play in channeling the reactions of those in pain, those who have been harmed. The best books help us understand our own substantive and theoretical areas; they help us extend our analysis. Engel's book is indeed one of the best I have read lately. As I read, I find myself wanting to take insights from The Myth of the Litigious Society and travel with them-beyond the study of litigation and settlement and into the study of legal mobilization and social movement activism.

It is a particular strength of this work that to do so is possible; the book opens a set of questions that invite us to think more deeply about individuals' reactions-litigious and not-to trauma. And, Engel's analysis shows us that so much of what we think we know is based on the assumption that people are rational actors-economic self-determining individuals. He is persuasive, and clear: "the decision-tree model [of legal claims making] is deeply flawed. ... [It constructs] an unrealistic image of injury and response that bears little relationship to injuries as they actually occur, or to victims as they actually live, breathe, and cope with the dire circumstances in which they find themselves" (36). So-called rational choice explanations miss-as Engel points out-cultural explanations. They also, and perhaps most importantly, miss the emotional, cognitive, and physical explanations for activism.

In some very evocative passages, and quoting others' powerful meditations on pain, Engel notes that when people have experienced trauma, and are in pain, the very "structure of their lives collapses" (39-40). They live through hour-by-hour and even minute-by-minute attempts to endure (39-40). They do not have the emotional margin to ponder the future, or plan for better days; they exist in struggle, and their pain and struggle constitute their very identities, which limits their ability to make legal claims. In his book, Engel is clear: we cannot expect injured people-those individuals whose injuries have "transformed their identity in ways that defy their powers of explanation" (46)-to make coherent demands upon corporate and state actors.

Here, Engel is writing about personal injury and the potential to claim tort harm. But we can, I believe, extend this understanding beyond individual harm caused by a workplace accident, or a tripand-fall incident. Reading about life as struggle to survive, I think about the pain of Philando Castile's partner, Sandra Bland's family; I imagine the trauma of the 60 women who have accused Bill Cosby of sexual predation, and the pain of genocide felt through the generations of lived experience of Water Keepers who held the line against the Dakota Access Pipeline. Indeed, the pain and trauma at the heart of the #BlackLivesMatter and #NoDAPL movements, are both motivating forces and constitutive elements of the movements.

To notice this pain is not to call the movements or their founders irrational, or to argue that their decisions are impulsive or ill- considered. It is not to argue that their demands are incoherent- though the state often perceives them as such: reparations for slavery and the return of stolen land are simply not part of the public policy conversation. …

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