In Which I Admire Millions of Tiny German Lawsuits And Annihilate Several Canards About the Law

The U.S. is famous in Germany for its 'runaway' juries which hand down zillion-dollar lawsuits against poor defenseless companies. Yet, as I told my dumbfounded students, Germany is a far more litigious society than the USA. In fact, according to a book-length 1998 study, Germany is the most lawsuit-happy country on earth:

Country Cases per 1,000 Population

• Germany 123.2
• Sweden 111.2
• Israel 96.8
• Austria 95.9
• U.S.A. 74.5
• UK/England & Wales 64.4
• Denmark 62.5
• Hungary 52.4
• Portugal 40.7
• France 40.3

My German students were dumbfounded by this fact. Most of them got their image of the world from the mainstream press. And, as usual, German journalists tended to obsess over the real or imagined failings of other countries, while remaining ignorant of what was going on in their backyard.

But aside from the good clean fun of this tu quoque response, it's interesting to think about why Germany is so litigious. I think there are 4 main reasons:

  • Legal insurance (Rechtschutzversicherung). Millions of Germans have legal insurance policies that pay for lawyers both to file claims and defend against them. This insurance is affordable because litigation costs in Germany are low. Legal insurance is actually an excellent idea, every country in the world could benefit from widespread legal insurance. What it means in Germany, though, is that if you have a policy, you don't have to think twice about filing a lawsuit. Granted, the lawyer is not supposed to file if you don't have a claim, but many do anyway. Legal insurance also provides a lifeline for many small-time lawyers — they can patch together a decent livelihood by having a constant docket of 40-50 small time cases going on at any time. None of these cases will generate a huge verdict, but a steady stream of small payments is enough.
  • Lawsuits are a fact of life. Nobody really takes them seriously. If your landlord hikes your rent, you use your legal-insurance lawyer to fight it. The landlord uses their legal-insurance lawyer to defend. After all, if you don't sue, you'll certainly have to pay the extra 10% in rent. If you do sue, you might end up with a discount. The landlord would probably do the same thing in your position, and knows this.
  • Close neighbors make bad blood. Germany is a small country packed with people. Everything you do in public is going to have some effect on your neighbors. If a potted plant falls off your city balcony, it's going to hit someone or something below. If your cat likes to relieve themselves on your neighbor's lawn, they're going to notice. And might just take lethal action. Your barbecue smoke is going to trigger someone's asthma 5 houses down. The list goes on and on. Every German state has a long, complex "neighbor law" (here's the one (g) for my state), and many lawyers do nothing else. And once again, these petty squabbles are going to end up in court because it's so easy to go to court because of legal insurance. 

And finally, no lawsuit is too tiny. As Wagner once said, a German is someone who will always do something for its own sake. Which means Germans will file a suit over anything. Why, here's a story (g) from the excellent criminal-defense blog lawblog. Two retirees went fishing for deposit bottles in Munich, a favorite pastime of poor Germans, or just ones who need some way to fill their days in the fresh air.*

They approached a large man-sized glass-recycling container, whipped out their grabbers, and started fishing around inside the container. Recycling containers are supposed to be reserved for bottles which don't have a deposit on them, like wine bottles. But many people don't care or don't know how to tell a deposit from a non-deposit bottle, and just toss everything in.

Sure enough, our two hunters found 15 deposit bottles with a total value of € 1.44. Two other Germans, who were certainly feeling very German that day, called the police and reported the bottle-fishers for theft. Wait, what? Two people minding their own business, helping recycle glass, augmenting their puny incomes, harming nobody, and their fellow Germans report them to the cops? Welcome to Deutschland, my friends.

Now German prosecutors are obliged to investigate every credible accusation of crime that comes to their attention, the famous "Principle of Legality"**. This they did. The first thing they had to determine was what the value of the theft was. Technically, this was a theft — once you throw a glass bottle into a recycling bin, it becomes the property of the recycling company. So you might think that the amount of the theft was the deposit value of the bottles. But no! It turns out that the recycling company does not separate out deposit bottles from other ones. Scandalous, I know. So all the bottles just get melted down. The prosecutor asked the recycling firm how much value the bottles would have as recycling material, and the firm said: basically, it's too small to even put a number on.

At this time, the prosecutor chose to halt the proceedings (einstellen) based on the idea that there was no public interest in prosecuting the offenders. The writer at lawblog thinks this was the wrong reason to stop the prosecution — he thinks a better theory is to deny the people had any attempt to commit theft, because they had no intent to take possession of the bottles — their ultimate goal was simply to transfer them to a different owner. 

Be that as it may, the main thing to notice here is that several different government employees spent hours of their time and used considerable resources to investigate an accusation of a crime which, at the very most, involved the lordly sum of € 1.44. It's probably only a slight exaggeration to say that the German state spent 1000 times more money investigating the theft than it was actually worth in the first place.

Now, am I going to snigger about this? Of course I am, and so are you. But at the same time, I'm not going to go too far. The most important thing to keep in mind about high numbers of lawsuits is that they are an important sign of social health. In the vast majority of societies, lawsuits are prohibitively expensive and courts are woefully underfunded and corrupt, so nobody trusts them. Germans and Americans trust courts to usually resolve legal disputes in a fair and equitable manner, otherwise they wouldn't seek them out so often. They're right to do so; both the USA and Germany have exceptionally fair and efficient legal systems, despite their imperfections. A fair, professional, and generally non-corrupt legal system is one of humanity's most important achievements, full stop. Most countries don't yet have one. If you happen to live in a country which does, take a moment and thank your lucky stars. 

* You'd be surprised how many Germans decide they just don't fancy showing up to work anymore and having someone boss them around and tell them to do things. So they develop something hard to pin down, such as a bad back or burnout stress, hire a good employment lawyer, and presto! They're still technically employed in a certain sense, but they don't actually have to, you know, do anything. Everybody wins: their former employers are free of someone who wasn't really contributing, the employee has all the free time he wants, and most importantly, the government doesn't have to formally add this person to the unemployment rolls. Northern European welfare states are notorious worldwide for using a million different tricks to lower their official unemployment rate, and this is just one.

** Some German lawyers, or wanna-be lawyers, believe a lot of adorably misguided things about the principle of legality. If you begin talking about the American legal system, they will get up on their hind legs and begin intoning something like this: "Well, you see, in America most criminal cases are resolved by plea-bargains, where the defendant admits a crime — quite possibly not the one he actually committed — in return for a lighter sentence. This shows the irresponsible, frivolous gamesmanship of the system, where the objective truth of what happened can be bargained away as if justice were nothing more than a poker game. Here in Germany (string music starts swelling in the background), we believe in the principle of legality, which means the prosecutor must investigate all crimes and must prosecute based on the objective facts of what the defendant actually did."

It's at this point that I usually interject to point out that this speech is, not to put too fine a point on it, a crock of shit. First, German prosecutors are absolutely not obliged to bring every case to prosecution. As with all German legal principles, the principle of legality has a pragmatic loophole so big you could fit Saturn through it. A prosecutor is always permitted to "suspend" (einstellen) a prosecution if it is deemed a petty offence (§ 153, Criminal Procedure Code). Suspend is yet another German euphemism, it means the case is dropped. Although there may be a tiny theoretical chance of it being re-started, this basically never happens.

There are many other sections of the Code that permit the prosecution to suspend the investigation or to not bring charges on a variety of different grounds, the most frequently used being the prosecution's belief that bringing charges is "not in the public interest" for some reason. As you might guess, there are hundreds of stories of prosecutors suspending prosecution of high-powered or well-connected people for vague reasons. In fact, there's a whole book (g) ("Prosecution Unwanted!") about this, although it's not very convincing overall.

Also, if you believe plea bargains don't exist in Germany, I've got a bridge in Moscow I'd like to sell you. Even before plea bargains were legally allowed in Germany, it was common knowledge that prosecutors used their huge discretion to plea-bargain all the time. Like American prosecutors, German prosecutors are hopelessly understaffed, and the entire justice system would collapse if cases couldn't be resolved informally.

The practice became so notorious that eventually the federal legislature decided to stop pretending and legalize it. In 2009, it passed a law which, for the first time, legally recognized plea-bargaining in Germany. The law was full of procedural safeguards meant to ensure that the defendants' rights were respected and the principle of legality was not undermined. Would the law pass constitutional muster? The German Federal Constitutional Court held that it did, in 2013:

Mark Blyth on The Origins of Neo-Nationalism

It's not often you stumble across some professor who says he's going to explain the world, and then watch him actually do it.

I stumbled across Mark Blyth via MetaFilter. Mark Blyth is political science professor at Brown University — Wait! I know, you're thinking Brown University, the tiny, ultra-expensive US liberal arts college which is a hotbed of the most demented form of political correctness? Can any professor there be capable more than soft-focus P.C. pieties?

Well, Mark Blyth can. Perhaps because he's Scottish. Very Scottish, if you listen to him. In 2016, Blyth accomplished a pretty impressive trifecta in 2016: he accurately predicted Brexit, the Italian constitutional referendum, and Trump. His big idea is Global Trumpism, which involves defections both to the right and the left from the globalist neoliberal consensus. Whether it's Podemos in Spain or Trump in the U.S., middle-class voters in the West are reacting to 30 years of tectonic changes in the global political and economic landscape which have seen their quality of life being gradually eroded.

The end result is a sense of seething frustration in the middle and lower classes of Western countries. Unions have been crushed, more and more risk shifted onto the shoulders of individuals, job security is a thing of the past, international competition and automation are destroying millions of jobs which will never come back, the small luxuries of middle-class life are drifting out of reach, and each generation is seeing a decline in its standard of living compared to the last one.

All the while, the rich are getting almost exponentially richer, and mainstream politicians — whether center-right or center-left, there is no meaningful difference — seem at best helpless or disinterested at worst actively corrupt.

Here's some remarks he published in Foreign Policy (previous link), which are a bit heavy on the economics but still get the point across:

Back in 1943, [Michal Kalecki] he argued that once you target and sustain full employment over time, it basically becomes costless for labor to move from job to job. Wages in such a world will have to continually rise to hold onto labor, and the only way business can accommodate that is to push up prices. This mechanism, cost-push inflation, where wages and prices chase each other up, emerged in the 1970s and coincided with the end of the Bretton Woods regime and the subsequent oil shocks to produce high inflation in the rich countries of the West in the 1970s. In short, the system undermined itself, as both Goodhart and Kalecki predicted. As countries tried harder and harder to target full employment, the more inflation shot up while profits fell. The 1970s became a kind of “debtor’s paradise.” As inflation rose, debts fell in real terms, and labor’s share of national income rose to an all-time high, while corporate profits remained low and were pummeled by inflation. Unions were powerful and inequality plummeted….

But if it was a great time to be a debtor, it was a lousy time to be a creditor. Inflation acts as a tax on the returns on investment and lending. Unsurprisingly in response, employers and creditors mobilized and funded a market-friendly revolution where the goal of full employment was jettisoned for a new target—price stability, aka inflation—to restore the value of debt and discipline labor through unemployment. And it worked. The new order was called neoliberalism.

Over the next thirty years the world was transformed from a debtor’s paradise into a creditor’s paradise where capital’s share of national income rose to an all-time high as labor’s share fell as wages stagnated. Productivity rose, but the returns all went to capital. Unions were crushed while labor’s ability to push up wages collapsed due to the twin shocks of restrictive legislation and the globalization of production. Parliaments in turn were reduced to tweet-generating talking shops as central banks and policy technocrats wrested control of the economy away from those elected to govern.

Seen this way, what we see is a reversal of power between creditors and debtors as the anti-inflationary regime of the past 30 years undermines itself—what we might call “Goodhart’s revenge.” In this world, yields compress and creditors fret about their earnings, demanding repayment of debt at all costs. Macro-economically, this makes the situation worse: the debtors can’t pay—but politically, and this is crucial—it empowers debtors since they can’t pay, won’t pay, and still have the right to vote….

The traditional parties of the center-left and center-right, the builders of this anti-inflationary order, get clobbered in such a world, since they are correctly identified by these debtors as the political backers of those demanding repayment in an already unequal system, and all from those with the least assets. This produces anti-creditor, pro-debtor coalitions-in-waiting that are ripe for the picking by insurgents of the left and the right, which is exactly what has happened.

In short, to understand the election of Donald Trump we need to listen to the trumpets blowing everywhere in the highly indebted developed countries and the people who vote for them. 

The global revolt against elites is not just driven by revulsion and loss and racism. It’s also driven by the global economy itself. This is a global phenomenon that marks one thing above all. The era of neoliberalism is over. The era of neonationalism has just begun.

Blyth actually shines in videos; he's an outstanding and engaging speaker. I switched this video on to run in the background while I did some housework, but found myself repeatedly rushing to the computer to replay something I didn't quite get. This video is the best exposition of his theory as a whole. You'll have to get used to his Scottish burr:

Although his main critique is aimed at the technocratic managers of national and international economic policy, he also directs withering critiques at center-left politicians, who hurl accusations of politically-incorrect thoughtcrime to appear "left" while simultaneously suckling at the teat of the financial and technological elite and doing nothing to improve the lot of the middle class.

Blyth thinks the U.S. will stumble through, but Blyth believes that the outlook for Europe is much bleaker (this discussion starts at about 41:00). The Euro is a disaster which cannot be fixed, but European technocrats still refused to understand this, and continue to inflict crippling austerity on the European South in a doomed attempt to save it.

Venice: Where Ignorant Artists Clash by Night

When I visited the most recent documenta, there were dozens of dull didactic installations meant to indoctrinate visitors into the proper attitudes toward everything from organic farming to the Western Sahara. Fortunately, there were also intriguing works of art.

Yet the trend toward unoriginal laments on the state of the world from art bureaucrats continues unabated. Here is Okwui Enwezor, the curator of the current Venice Bienniale, writes in his introduction to the show:

One hundred years after the first shots of the First World War were fired in 1914, and seventy-five years after the beginning of the Second World War in 1939, the global landscape again lies shattered and in disarray, scarred by violent turmoil, panicked by specters of economic crisis and viral pandemonium, secessionist politics and a humanitarian catastrophe on the high seas, deserts, and borderlands, as immigrants, refugees, and desperate peoples seek refuge in seemingly calmer and prosperous lands. Everywhere one turns new crisis, uncertainty, and deepening insecurity across all regions of the world seem to leap into view.

…blah blah blah. To paraphrase Mary McCarthy, every single word of this is wrong, including 'and' and 'the'. 

A few charts from Our World in Data, the site run by economist Max Roser which turns the best and latest data into informative charts:

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Nrewabspov

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