David Engel, ‘Perception and Decision at the Threshold of Tort Law: Explaining the Infrequency of Claims’

Although numerous studies have confirmed that tort victims rarely litigate and that most simply “lump” their losses, we lack an understanding of why this should be so. Why do the vast majority of injured persons choose inaction over action? Explanations relying on rational actor theories on the one hand or cultural determinism on the other have been sharply challenged by recent studies of mind, culture, and cognition, particularly with respect to individual responses to physical trauma and disablement. This article, drawing on a broad interdisciplinary literature dealing with injury victims, proposes a new model of perception and decision by persons who are situated at the threshold of tort law, and it offers some suggestions about why they so seldom cross it. This model takes into account the effects of nonconscious thought, which is grounded in the body itself. It also highlights the role of the social and cultural environment in shaping the interpretation of injurious experiences and the decisions that follow. Finally, it considers the injury victim’s interactions with friends, family co-workers, and others, all of whom collaborate in constructing a narrative of the injury and a decision about how to respond.

Engel, David M., Perception and Decision at the Threshold of Tort Law: Explaining the Infrequency of Claims (June 6, 2013). 62 DePaul Law Review 187 (2012); SUNY Buffalo Legal Studies Research Paper No. 2013-045.

First posted 2013-09-13 13:58:35

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