In my capacity as a visiting associate professor at GWU law school, I took a bunch of students to the US Court of Appeals for the Federal Circuit to see the court in action. Unfortunately, although this is a specialized IP court, we saw only one patent case that morning–the rest were cases concerning procedural matter such as the statute of limitations (in a vaccine injury case). Unfortunately, this IP specialised court has also to contend with these sort of issues.

Whilst watching the proceedings, I couldn’t help but think as to why people in the US litigate so much. I know this topic has been done to death but it’s always interesting to dig deeper and investigate further, and perhaps to find parallels (or lack of parallels) in other countries. A key reason, at least to me, is that people are very averse to assuming personal responsibility for their actions. In short, although I screwed up (pardon my French)–someone else is to blame–and I want a court to reinforce my belief that this had nothing to do with me….

Consider the following case:

A California man is suing the Las Vegas Hilton and Mandalay Bay Hotel and Casino, claiming the casinos were negligent in allowing him to gamble away more than $1 million while he was intoxicated.

Excuse me!! Should liquor companies now carry warning signs: “Consumption of alcohol is harmful to health. Even more harmful is the prospect of losing money in Casino’s” So beware!!

In a recent article Gayle Porter, associate professor of management at the Rutgers University School of Business in Camden, New Jersey, argues that people could now potentially sue for “technology addictions” (thanks to my friend Badri Shyam for pointing this out). She makes the argument in the specific context of employers: employees ( employees being kept on electronic leashes [read “Blackberry”]by employers and thereby getting addicted to these electronic leashes), but one can see the potential breadth of the argument to anyone who is addicted to technology. A News item commenting on her article states:

“These people that can’t keep it within any reasonable parameters and have these problems in their lives, at some point may say: ‘My life is not all that great. How did this happen? Who can I blame for this?’,” Porter, who co-authored the study with two other academics, said in an interview on Thursday. “And they’re going to say, ‘The company’.”

Of course, when you get addicted, you are never to blame!! The news item goes on to state:

Addiction to technology – blamed by critics on the seeming ubiquity of portable e-mail devices, smartphones, cellphones and laptops, coupled with long working hours – is hardly a new phenomenon.
But Porter argues litigation could be the next step, as employees seek redress for technology dependence. She predicts companies could use a free-will argument in defending themselves: “They’re going to, I would suspect, say that this was an individual choice.”

But, isn’t this in fact about INDIVIDUAL CHOICE? In a country where “free will” is a much bandied about term, the litigation system now offers perverse incentives to repudiate this very concept and blame someone else for all the misgivings in one’s life. Wouldn’t it be funny if someone now sued the courts/litigation system for making them dependent on such law suits and causing them to forget the concept of “personal responsibility”/”free will”? Granted that accepting personal responsibility requires great courage and may even come at the cost of getting one seriously depressed. In that sense, litigation is almost therapeutic. But then, what do we have shrinks for? And they are far less expensive than courts!!

I couldn’t help but think of parallels to India. It almost seems that the STARS are to India what LITIGATION is to the US. In other words, Indians blame their stars/fate (a significant portion of them at least) for all their misfortune. Of course, this is not the main reason why we don’t have as many personal injury cases. Lack of a sophisticated tort law jurisprudence (under which most such actions are brought), an aversion to granting huge damages (serves as main incentive to bring these actions) and protracted litigation are the key reasons.

But I think the STARS do play some role in resisting our desire to blame someone else and to get a court to share in our misguided belief. Of course, this is not to endorse a fatalistic attitude to life (which comes with its own share of troubles) but perhaps its a good thing, at least from the “cost” point of view–since, as with shrinks, our astrologers (barring the VIP categories) cost far less money than the courts. Am I offering a perverse incentive for the lawyers in India to screen STARS out of people’s lives? Anyway, I think this is an idea worth investigating. Anyone willing to co-author a piece with me on this theme?

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.


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  2. AvatarAarathi


    I did think about the Indian scenario, where there are hundreds of very meritorius tort cases… but following a line of reasoning takes me to lawyer malpractice litigation. So I decided that it might not be the best way to go 🙂


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