Abstract

http://ssrn.com/abstract=2275507
 


 



Perception and Decision at the Threshold of Tort Law: Explaining the Infrequency of Claims


David M. Engel


SUNY Buffalo Law School

June 6, 2013

62 DePaul L. Rev. 187 (2012)
SUNY Buffalo Legal Studies Research Paper No. 2013-045

Abstract:     
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.

Number of Pages in PDF File: 43

Keywords: torts, injury, lumping, claiming, dispute pyramid, cognition, decisionmaking, bias, culture, narrative

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Date posted: June 7, 2013  

Suggested Citation

Engel, David M., Perception and Decision at the Threshold of Tort Law: Explaining the Infrequency of Claims (June 6, 2013). 62 DePaul L. Rev. 187 (2012) ; SUNY Buffalo Legal Studies Research Paper No. 2013-045. Available at SSRN: http://ssrn.com/abstract=2275507

Contact Information

David M. Engel (Contact Author)
SUNY Buffalo Law School ( email )
415 O'Brian Hall
Buffalo, NY 14260-1100
United States

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