Can Tort Juries Punish Competently?

Punitive damages have prompted much academic and political debate during the last twenty years. In their recent book Punitive Damages, Cass Sunstein, Reid Hastie, John Payne, David Schkade, and W. Kip Viscusi present some twenty experimental studies that, they argue, show that juries award punitive damages too often, that the amounts they award are erratic and unpredictable, and that their decision-making processes are prone to various cognitive biases and other irrationalities, displaying a particular disregard of the principle of optimal deterrence. While the book offers much reliable and valuable data on how juries think about punitive damages, the authors frequently describe their results tendentiously, downplaying or omitting considerations that would support alternative interpretations of the data. Most importantly, by emphasizing deterrence to the exclusion of the retributive function that punitives are widely thought to serve, the authors present an unduly pejorative picture of juries\u27 punitive damages decision making and overstate the need for reforming the process

Can Tort Juries Punish Competently?

Punitive damages have prompted much academic and political debate during the last twenty years. In their recent book Punitive Damages, Cass Sunstein, Reid Hastie, John Payne, David Schkade, and W. Kip Viscusi present some twenty experimental studies that, they argue, show that juries award punitive damages too often, that the amounts they award are erratic and unpredictable, and that their decision-making processes are prone to various cognitive biases and other irrationalities, displaying a particular disregard of the principle of optimal deterrence. While the book offers much reliable and valuable data on how juries think about punitive damages, the authors frequently describe their results tendentiously, downplaying or omitting considerations that would support alternative interpretations of the data. Most importantly, by emphasizing deterrence to the exclusion of the retributive function that punitives are widely thought to serve, the authors present an unduly pejorative picture of juries\u27 punitive damages decision making and overstate the need for reforming the process

Avoiding Overtreatment at the End of Life: Physician-Patient Communication and Truly Informed Consent

This paper’s primary focus will be on considering how best to ensure that patients have the tools to make both informed and authentic choices about their care at the end of life. We will argue that truly informed decision making can help to reduce excessive end-of-life care by any measure. Most importantly for dying patients, better informed decisions can help reduce unnecessary suffering and result in care that aligns with their well-considered values and preferences. In the first part of this paper, we will explain that, by any of these measures, many dying patients are receiving too much therapy and life-prolonging care. We will also briefly discuss the many factors that contribute to this state of affairs: the culture of denial of death, physicians’ professional culture and attitudes toward treatment, physicians’ fear of liability, physician avoidance of discussions about prognosis, and the impact of payment incentives that encourage overutilization of medical technologies. In the second part of this paper, we will explain that, under the doctrine of informed consent, physicians have an ethical and legal obligation to provide patients with timely and accurate information that will enable patients to make informed decisions about end-of-life care. Yet compliance with informed consent law does not ensure that patients’ decisions are truly informed and, in practice, the norm is still to provide too much care. In the third part of the paper, we discuss several tools and techniques that are available to help physicians and patients achieve the goal of truly informed decision making, including training to promote the practice of shared decision making and the use of decision aids

Amicus Brief, Lebron v. Gottlieb Memorial Hospital

Illinois Public Act 82-280, § 2-1706.5, as amended by P.A. 94-677, § 330 (eff. Aug. 25, 2005), and as codified as 735 ILCS 5/2-1706.5(a), imposes a $500,000 “cap” on the noneconomic damages that may be awarded in a medical malpractice suit against a physician or other health care professional, and a$1 million “cap” on the noneconomic damages that may be awarded against a hospital, its affiliates, or their employees. This brief will address two of the questions presented for review by the parties: 1. Does the cap violate the Illinois Constitution’s prohibition on “special legislation,” Art. IV, § 3, because it unnecessarily, arbitrarily, and irrationally grants exceptional benefits and privileges exclusively to certain classes of tort defendants. 2. Does the cap violate the Illinois Constitution’s guarantee of “equal protection,” Art. I, § 2, because it unnecessarily, arbitrarily, and irrationally imposes extraordinary burdens uniquely upon certain classes and sub-classes of tort plaintiffs

The Rhetoric of Torts: How Advocates Help Jurors Think about Causation, Reasonableness, and Responsibility

How do jurors in accident cases think about negligence, and to what extent do their conceptions conform to the law? This Article examines closing arguments in several accident cases, showing the extent to which advocates appeal to the knowledge structures and inferential heuristics that people use to judge causation and responsibility in everyday life. Through argument structure, point of view, verb tense, metaphor, and other linguistic devices, attorneys construct a rhetoric that combines legal rules with the tools of ordinary judgment. The conceptions of negligence implicit in these arguments occasionally conflict with the law; the Article indicates the cognitive and sociopsychological grounds for such conflict. More often, the analysis of attorneys\u27 rhetoric suggests how jurors can apply the law\u27s very general guidelines to yield particular common-sense notions of negligence that are consistent with the law

Merciful Damages: Some Remarks on Forgiveness, Mercy and Tort Law

This article explores the place of forgiveness and mercy in tort law, describing frequent misgivings about encouraging forgiveness or mercy as part of the substantive or procedural law of torts. Finally, the article suggests a new concept, merciful damages which might allow some of the benefits of forgiveness while avoiding or mitigating some common concerns