Comments on: “Calculating damages: a formula for outrage”

By: jb

jb — Wed, 06 Dec 2006 00:11:25 +0000

Emotional damages I find ridiculous, as ridiculous as crimes based on the victim’s mental state (without any requirement that the victim make his/her feelings known).

Laws should prevent actions that can be described in terms that a third, or first, party can know. So damages for causing harm, extra damages for cruelty, no extra damages for hurting anyone’s feelings.

By: Deoxy

Deoxy — Tue, 05 Dec 2006 14:58:38 +0000

Caps is what it will eventually have to come to in most very area except actual economic damages. Caps are a crappy solution, but still MUCH less bad than the current status quo, and we can’t seem to get anything else passed, so…

By: David Wilson

David Wilson — Tue, 05 Dec 2006 12:13:39 +0000

None of which is simplified by the ubiquitous Batson challenge, under which plaintiff’s lawyers traditionally challenge the defense (or prosecution’s) exclusion of racial minorities from the jury. Never mind that plaintiffs just as calculatingly seek to have juries as loaded with racial minorities as possible (and let’s please not start hyperventilating about “stereotypes,” because everyone knows perfectly well what’s going on). I’m not aware of a legal challenge to the attempt to seat a juror solely BECAUSE of their race.

But more broadly, cases like this indicate to me that the inherent power of juries themselves — supported, I realize, by elements far left and far right — are in need of scrutiny. The jury looks at the case before it and ignores outside concerns (fine – the judge even tells them to). It sees a chance to “get even” with a bad guy (fine – I’d like to myself). But when it socks through a four-million dollar award based on nothing more than its whim, other social concerns (the defendant’s, the consumer public, the insurance-paying public, the tax-paying public) are heavily implicated. It’s a pretty obvious example of moral externalities run amok. One way to rein this in would be to set statutory damage caps or even specific amounts. Emotional shock and outrage, if proven by a preponderance of the evidence, = 10K, 50K or 100K.

By: Ted

Ted — Tue, 05 Dec 2006 07:45:51 +0000

The problem is that, through voir dire, plaintiffs’ lawyers can ensure that the seated jury is unrepresentative of the voting public at large. The problem is worse in LA, which is unusual in that jury service is determined by neighborhood, so one can forum-shop within the city itself, as the DA’s office was criticized for failing to do in the Rodney King-beating and OJ Simpson prosecutions.