Awards for Pain and Suffering: The Irrational Centerpiece of Our Tort System

IF 2.4 2区社会学 Q1 LAW

Virginia Law Review Pub Date : 2004-09-01 DOI:10.2307/3202381

Paul v. Niemeyer

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引用次数: 14

Abstract

HEN a petit jury in a civil tort action awards damages for pain and suffering, it does not award damages that compensate, or that indemnify, or that provide restitution to the injured party—the traditional functions of damage awards. Damages that are awarded for pain and suffering are probably intended as a pecuniary bonus or gift in an amount thought roughly to reference the pain suffered or expected to be suffered. But there seem to be no rational, predictable criteria for measuring these damages. For that reason, there are also no criteria for reviewing pain and suffering awards by the presiding judge or by an appellate court. Without rational criteria for measuring damages for pain and suffering, awarding such damages undermines the tort law’s rationality and predictability—two essential values of the rule of law. Yet it is this irrationality in awarding money for pain and suffering that provides the grist for the mill of our tort industry, which is now estimated to have grown to $200 billion. It is difficult to dismiss an industry of this size as a small pocket of tolerable irrationality when it exceeds the entire economy of Turkey, or Austria, or Denmark.

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痛苦奖：我们侵权制度的非理性中心

当一个小陪审团在民事侵权诉讼中裁决损害赔偿时，它不会裁决赔偿，或赔偿，或向受害方提供赔偿——损害赔偿的传统功能。因痛苦和折磨而获得的损害赔偿可能是一种金钱奖励或礼物，其数量大致与所遭受的痛苦或预期遭受的痛苦有关。但似乎没有合理的、可预测的标准来衡量这些损害。因此，审判长和上诉法院也没有审查痛苦赔偿的标准。如果没有衡量痛苦和折磨损害赔偿的合理标准，这种损害赔偿的裁决就会破坏侵权法的合理性和可预见性——法治的两个基本价值。然而，正是这种为痛苦和苦难提供赔偿的非理性行为，为我们的侵权行业提供了原料，该行业目前估计已增长到2000亿美元。当一个行业的规模超过土耳其、奥地利或丹麦的整体经济规模时，很难将其视为一个可以容忍的不理性的小口袋。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

Virginia Law Review LAW-

CiteScore

2.70

自引率

3.80%

发文量

期刊介绍： The Virginia Law Review is a journal of general legal scholarship published by the students of the University of Virginia School of Law. The continuing objective of the Virginia Law Review is to publish a professional periodical devoted to legal and law-related issues that can be of use to judges, practitioners, teachers, legislators, students, and others interested in the law. First formally organized on April 23, 1913, the Virginia Law Review today remains one of the most respected and influential student legal periodicals in the country.