Over the Thanksgiving holiday, I read Malcolm Gladwell’s latest book, David and Goliath (Little, Brown and Company 2013). While he raises many interesting points throughout the book, the one that struck me was the “inverted U-curve” which he first mentions in chapter 1. In a footnote on page 54, he explains:

Inverted-U curves actually have four parts. Stage one, where the curve is linear. Stage two, where “the initial linear relation has flagged.” This is the area of diminishing marginal returns. Stage three, where extra resources have no effect on the outcome. And stage four, in which more resources are counterproductive.

Here is a picture depicting the inverted U shape curve demonstrating our productivity vs how much stuff we have to do (how appropriate for this time of year!):

( http://babyattachmode.blogspot.com/2012/04/inverted-u-shaped-curve-of-productivity.html )

As an example, Gladwell discusses the relationship between alcohol consumption and health, noting that studies show that drinking one glass of wine a week will lead to improved health. Drinking two glasses of wine a week will lead to even better health and so on up to about seven glasses a week. Then, one hits the flat part of the curve in which drinking somewhere between seven and fourteen glasses a week neither improves nor jeopardizes your health. But, drink more than this, and you will be on the down slope in which drinking more than fourteen glasses a week will definitely lead to a shorter life. (Id. at p. 55n.)

What caught my interest is that this inverted U curve apparently applies to all sorts of things. For example, Gladwell discusses its application to the Three Strikes Law in California and elsewhere. (Id. at 238.) . When it was passed, its aim was to crack down on crime, and it did just that, initially. But, past a certain point, the crackdown on crime not only stopped having any effect on criminals but actually made things worse. Due to the imposition of the Three Strikes Law in California, the prisons have now become over-populated and overcrowded to the point that the authorities are now releasing the non-violent felons back into the general population even though they have not completed their sentences. The result of these early releases has been a huge increase in burglaries not only in my neighborhood but in many other neighborhoods throughout greater Los Angeles.

Gladwell argues that with respect to our justice system, “… there comes a point where the best-intentional application of power and authority begins to backfire….” (Id. at 257.) And I think this is true of our civil justice system as well; it too operates on an inverted U curve; initially filing a lawsuit is beneficial; it certainly gets the other party’s attention and forces them to focus on the issues. But, after a certain point, the imposition of authority by a judge and/or a jury may well begin to back fire. The defendant may well be one with nothing to lose and so does not care, or knows that for one reason or another she will never be held responsible or have to pay a judgment. Thus, to continue forward with the litigation presents diminishing returns and becomes a bottomless pit in which time and expense is poured into with less and less hope of recovery.

Justice has its limits. Thus, it always better to settle than to keep going and hit the down slope of the inverted U shape curve.

…. Just something to think about.

I want to wish everyone a very very happy holiday and a wonderful 2014! may the new year bring you health, happiness and prosperity! I am taking a little break and will return in early January 2014! See y’all then!

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