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

Abstract

The Myth of 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 embodied and emotional experiences of injury, and role that these experiences play in channeling 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 best I have read lately. As I read, I find myself wanting to take insights from The Myth of Litigious Society and travel with them-beyond study of litigation and settlement and into study of legal mobilization and social movement activism.It is a particular strength of this work that to do so is possible; 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 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 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 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, 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 emotional margin to ponder 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 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 pain of Philando Castile's partner, Sandra Bland's family; I imagine trauma of 60 women who have accused Bill Cosby of sexual predation, and pain of genocide felt through generations of lived experience of Water Keepers who held line against Dakota Access Pipeline. Indeed, pain and trauma at heart of #BlackLivesMatter and #NoDAPL movements, are both motivating forces and constitutive elements of movements.To notice this pain is not to call 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 state often perceives them as such: reparations for slavery and return of stolen land are simply not part of public policy conversation. …