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. 

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Anna Sauerbrey, Like Germany, Misses the Point

Infografik-vom-kopftuch-bis

[source. A handy German field guide to Muslim head coverings. I see the four on the left every time I leave the house, although the niqab remains pretty rare; I see it 2-3 times a week, not every day. The irony is that almost nobody wears a burka in Germany, but the debate about this issue is called the "burka-debate".]

Which brings us to one of Germany's periodic, tedious Leitkultur debates. I'll let Anna Sauerbrey, the New York Times' Germany-whisperer, define the term:

Consider the topic of the moment among Germany’s political class — whether the country has a “Leitkultur,” or guiding national culture, or whether it is a truly multicultural nation.... The term surfaced in 2000, when the Christian Democratic politician Friedrich Merz wrote an article in Die Welt asking whether it is enough for immigrants to obey German law or whether there are other manners, habits, traditions and conventions that everybody should respect as well.

Sauerbrey herself counsels: "Germans will have to accept habits and thoughts that are unfamiliar or even disturbing. Not because we accept them, but because we probably won’t change them."

The first response which pops to mind (aside from how you can "accept" something you don't "accept") is: Why? Did they vote for this? I don't meet very many Germans who are eager to be confronted with "unfamiliar" or "disturbing" things. Indeed, I don't meet many people in general who are this way.

The deeper problem is that this debate dances around the only relevant issue. If German acted like the majority of developed countries and only imported immigrants with a proven track record of adapting successfully to other cultures, there would be no Leitkultur debate.

If you want foreigners to integrate easily into your society, pick foreigners who will integrate easily into your society.

This is not mystery. Düsseldorf plays host to the largest Japanese expat community in Europe. These folks of course preserve their own habits and culture, much to the delight of their German hosts. But because they tend to be well-educated and come from a culture which has broadly similar values to German culture, they cause no problems. The whole Leitkultur debate is not about what immigrants do in their own homes and businesses, but about aspects of their behavior in public and in interactions with institutions.

Japanese immigrants cause no friction at all. In particular:

  • Japanese immigrants don't engage in honor killings.
  • Japanese immigrants do not get radicalized by online propaganda and commit terror attacks on German soil.
  • Japanese immigrants don't form clan-based criminal syndicates which engage in violent street battles in the poor areas of German cities.
  • Japanese immigrants are happy to shake hands with members of the opposite sex.
  • Japanese immigrants do not believe religious laws should take precedence over civil laws.
  • Japanese immigrants don't insist their female children be exempted from swimming lessons or school trips.
  • Japanese immigrants don't commit crimes at a rate hugely disproportionate to their share of the population.

The list goes on. You could substitute "educated, worldly Muslim" for the word "Japanese" in each of those bullet points.

Germany is having a debate about how much (formal or informal) pressure they need to apply to "get" immigrants to fit in is because those immigrants aren't doing it themselves. And that's because Germany has imported too many of the wrong kind of people: uneducated young males from conservative, traditional Muslim societies (or the conservative, traditional parts of Muslim societies). These people have few or none of the preconditions necessary to thrive within a very different, much more modern culture than their own. Yet they also don't want to go back to their home countries, where standards of living are much, much, much worse than Germany in every way. Who can blame them?

Choose your immigrants more wisely, and the Leitkultur debate vanishes. Yet Germany keeps on making the same mistake, over and over -- importing people who cannot adapt to German society, and then being surprised when they do not adapt. As Albert Einstein Narcotics Anonymous once said, "Insanity is repeating the same mistakes and expecting different results."


Paul Hockenos on German Arrogance

In Foreign Policy:

One year ago, Germany was named the “best country” in the world, according to a poll by the University of Pennsylvania’s Wharton School. The poll relied on criteria measuring entrepreneurship, power, public education, and quality of life, among others. But for a growing number of Germans, the important thing was that it offered confirmation of their own self-image. Their country slipped to fourth in this year’s poll, behind Switzerland, Canada, and the United Kingdom, but that seems unlikely to do much to dim the self-confidence of a country enjoying a surging economy and growing international cachet.

Whether the field is migration or manufacturing, fiscal policy or renewable energy, Germans increasingly believe that they, and they alone, know best, at least judging from the attitude newly on display everywhere from newspaper columns to parliamentary speeches to barroom chats over beer. In German the phenomenon is summed up in one word: Besserwisserei, a know-it-all attitude, which the Germans themselves admit is somewhat of an engrained cultural trait.

But it’s increasingly clear that one country’s allegedly evidence-based Besserwisserei is another country’s intolerable smugness. Just ask Germany’s European neighbors, and others, including the United States, where resentment of Germans has been percolating for years, under constant threat of bubbling over....

German high-handedness is eliciting angry charges of “moral imperialism” from Hungary, and its central European neighbors, including Slovakia, Poland, and Croatia, largely concur. Meanwhile, during the first round of the French presidential election, candidates from more than one party chastised Merkel for dictating a German eurozone policy. “We order it, you obey, and tout suite,” is how the German publisher Wolfram Weimer critically summed up Germany’s new modus operandi during the bailout negotiations in an article titled “Virtuous Totalitarianism”. U.S. economist Paul Krugman repeatedly blasts Germany for “moralizing” on European fiscal policy, namely Germany’s obsession with budget discipline, which he considers entirely counterproductive. Since Germany’s setting of the onerous terms for the eurozone’s recovery packages, beginning in 2011, surveys in Europe show that many fellow Europeans consider Germans arrogant, insensitive, and egotistical (while, strangely, praising their dependability and influence in Europe)....

Of course, another reason German smugness can get under the skin is the fact that Germany simply isn’t nearly as universally superlative as it might prefer to think. A close corollary of Besserwisserei has always been hypocrisy. So Germany may browbeat other countries about their deficits today, but other Europeans remember that in the 2000s, when the German economy was in the dumps, and again during the financial crisis, Berlin consistently ran budget deficits in excess of eurozone rules — and avoided penalties for it. The deficits were critical for Germany to get its economy going again.

Meanwhile, Germany insists that other countries follow its lead on climate change, shutting down nuclear power stations and switching to clean energy generation. But Germany is Europe’s biggest burner of dirty coal (seventh in the world), and it’s not on track to hit the Paris Agreement’s reduction targets for 2020. Its best-selling export is big, expensive, gas-guzzling luxury automobiles, including diesels. The Dieselgate scandal caught Volkswagen and other German car manufacturers cheating on emissions tests.

And it’s no accident that the scandal was uncovered in the United States, far from the reach of German political and cultural power — nor that Germany’s discussion about the scandal has been just as focused on how the German auto companies in question can be saved rather than about the financial or moral atonement they might owe. “It’s obvious that the EU should take over emissions testing and that the commission should impose huge fines on Germany,” Lever says. “But it won’t, because it’s Germany, that’s why. It shows how much power Germany has now.”