Michael,

From what I recall, this is more or less the thesis of Robert Kagan’s book, Adversarial Legalism,.  Kagan argues that while Americans don’t like bureaucratic governance they actually do want regulation. This is achieved by having “adversarial legalism” do the work that state-sponsored regulation and insurance in other advanced democracies.  Hence contingency fees, pretrial discovery, class actions, winner pays his legal fees, and various forms of non-economic compensation, and the other distinguishing features of US tort law.  I don’t recall if Kagan makes this point, but much the same would seem to hold true regarding medical expenses, which are (less) socialized in the US.

 

 

 

--cs

 

 

Chaim Saiman

Associate Professor

Villanova Law School

610.519.3296

saiman@law.villanova.edu

http://ssrn.com/author=549545

 

 

  

 

 

Non-pecuniary damages in the UK can be significantly higher than $15,000 – in excess of £250,000 in the very worst personal injury cases, though the vast bulk of damages awarded in this type of case would be for pecuniary loss.

 

I understood that high awards of non-pecuniary damages by juries in the US were “intended” to cover the lawyers’ contingency fees (ranging from 30% to 50% of the total award) and that jury awards are often reduced on appeal.

 

The other point that I’ve seen made in connection with high levels of litigation in the US is that there is little in the way of social security provision and/or medical care for those with disabilities resulting from accidents, and the tort system is used to fill that gap (and the pockets of lawyers, of course!).  Individualism and self-reliance has its price.  I would be interested to hear from American colleagues about whether there is any empirical data to support either theory.

 

On the question of outlandish claims (though not a tort) there was a claim for constructive dismissal in the UK by a teacher who said that her squeaking chair in the classroom had forced her to resign her job.  She alleged that the children in the class poked fun at her whenever she sat on this chair (think “whoopee cushion”) and that the school had discriminated against her because they refused to replace or repair the chair (though another colleague had been given a new chair).  You may be relieved to hear that the claim was dismissed by an employment tribunal.  What happened to the chair is not known ...

 

Michael

 

 

I would agree with M?rten. This case - in particular the size of the award - would appear to most Scandinavians as "typical" American. Apart from the size of the award - anything above $15,000 in non-compensatory damages will tend to raise the odd eyebrow in Sweden -, the other factor is that the fact of the contestant's voluntary participation in what appears to be a pretty daft contest apparently (or, far more correctly, in the media reporting) not being an issue. To many people's mind, the "typical" American award involves a lot of money being paid for non-economic loss, in particular in situations where the loss itself was induced at least by contributory negligence on the part of the issued party, if not entirely on the part of the injured party. This also appears to me to be the defining factor of the hoaxes roaming the Internet and popular mythology.

Thanks to all who helped me with my question, by the way.

Best wishes to you all,
Jakob

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