Comments on: President Hinckley and Tort Reform? http://www.bloggernacle.org/president-hinckley-and-tort-reform/ Fri, 30 Jul 2010 22:10:36 -0400 hourly 1 http://wordpress.org/?v=3.0 By: Dave http://www.bloggernacle.org/president-hinckley-and-tort-reform/#comment-478 Dave Tue, 30 Nov 1999 00:00:00 +0000 http://bt.splendidsun.com/?p=104#comment-478 Blaine, I would have to think that tort victims don't see their injuries as a form of gambling; they didn't volunteer. Blaine, I would have to think that tort victims don’t see their injuries as a form of gambling; they didn’t volunteer.

]]> By: Blaine http://www.bloggernacle.org/president-hinckley-and-tort-reform/#comment-479 Blaine Tue, 30 Nov 1999 00:00:00 +0000 http://bt.splendidsun.com/?p=104#comment-479 Right, that's why I clarified with the paragraph on why "tort" reform is misleading. There is no problem with the tort itself, even with the compensatory damages. The problem is with the punitives. Up until punitives, there is no windfall. And for purposes of this discussion, the award of punitive damages is less problematic than the seeking after them, either as a career or as a victim. In both cases you're trying to be compensated for something that you don't deserve, and your windfall has adverse effects on the rest of society. I think I was pretty clear in the post that I don't think this is complete. But I do think that excessive punitive damages are an area where this principle of seeking after gains for which one did not work, returns for which one did not accept the risk, or returns such as gambling where the payoff is so high but the risk great, <i>can</i> be immoral when it is something that imposes costs on the rest of society. Right, that’s why I clarified with the paragraph on why “tort” reform is misleading. There is no problem with the tort itself, even with the compensatory damages. The problem is with the punitives. Up until punitives, there is no windfall.

And for purposes of this discussion, the award of punitive damages is less problematic than the seeking after them, either as a career or as a victim. In both cases you’re trying to be compensated for something that you don’t deserve, and your windfall has adverse effects on the rest of society.

I think I was pretty clear in the post that I don’t think this is complete. But I do think that excessive punitive damages are an area where this principle of seeking after gains for which one did not work, returns for which one did not accept the risk, or returns such as gambling where the payoff is so high but the risk great, can be immoral when it is something that imposes costs on the rest of society.

]]> By: lyle http://www.bloggernacle.org/president-hinckley-and-tort-reform/#comment-480 lyle Tue, 30 Nov 1999 00:00:00 +0000 http://bt.splendidsun.com/?p=104#comment-480 Blaine: As a plaintiff's lawyer, I couldn't disagree more with your post. (Civil) Law is a business, regardless if you are on the plaintiff's side or the defense side. Either way, value is provided to the client. Are there profits to be made? Yes, but that is inherent in any business activity. Your analogy might as well call for small business owners to fold up shop because they might be "seeking" after being bought out or an IPO and becoming rich. Sum: Doesn't even qualify as an analogy. Blaine:

As a plaintiff’s lawyer, I couldn’t disagree more with your post. (Civil) Law is a business, regardless if you are on the plaintiff’s side or the defense side. Either way, value is provided to the client. Are there profits to be made? Yes, but that is inherent in any business activity.

Your analogy might as well call for small business owners to fold up shop because they might be “seeking” after being bought out or an IPO and becoming rich.

Sum: Doesn’t even qualify as an analogy.

]]> By: Dave http://www.bloggernacle.org/president-hinckley-and-tort-reform/#comment-481 Dave Tue, 30 Nov 1999 00:00:00 +0000 http://bt.splendidsun.com/?p=104#comment-481 Blaine, even for punitives I would disagree with your characterization of a victim's recovery as a "windfall." That presupposes that straight damages properly computes a victim's total harm, when in fact the straight damage award itself is something of a crapshoot (or, to be more technical, a single draw from a very wide distribution of possible damage awards). Furthermore, victims often suffer more than the courts or hard-hearted judicial conservatives are ever likely to recognize (or, to be more technical, the single draw damage award and the mean of the distribution of possible damage awards is likely to be biased below the mean of the true underlying distribution of total harms). Personally, I think punitive awards serve two purposes: (1) they do a better job of compensating victims, since straight damages generally understate total harm suffered; and (2) they deter firms and individuals from continuing their reckless or negligent conduct. Blaine, even for punitives I would disagree with your characterization of a victim’s recovery as a “windfall.” That presupposes that straight damages properly computes a victim’s total harm, when in fact the straight damage award itself is something of a crapshoot (or, to be more technical, a single draw from a very wide distribution of possible damage awards). Furthermore, victims often suffer more than the courts or hard-hearted judicial conservatives are ever likely to recognize (or, to be more technical, the single draw damage award and the mean of the distribution of possible damage awards is likely to be biased below the mean of the true underlying distribution of total harms).

Personally, I think punitive awards serve two purposes: (1) they do a better job of compensating victims, since straight damages generally understate total harm suffered; and (2) they deter firms and individuals from continuing their reckless or negligent conduct.

]]> By: Blaine http://www.bloggernacle.org/president-hinckley-and-tort-reform/#comment-482 Blaine Tue, 30 Nov 1999 00:00:00 +0000 http://bt.splendidsun.com/?p=104#comment-482 Punitive damages are not for compensating victims. They are by definition a windfall because they are meant, not to compensate the victim, but to "punish" the tortfeasor. The deterrence point I buy; absolutely. My concern is with damages that go beyond detering conduct and curtail productive growth. Punitive damages are not for compensating victims. They are by definition a windfall because they are meant, not to compensate the victim, but to “punish” the tortfeasor.

The deterrence point I buy; absolutely. My concern is with damages that go beyond detering conduct and curtail productive growth.

]]> By: Jordan http://www.bloggernacle.org/president-hinckley-and-tort-reform/#comment-483 Jordan Tue, 30 Nov 1999 00:00:00 +0000 http://bt.splendidsun.com/?p=104#comment-483 Blaine, For reasons already listed above, I cannot believe you are even comparing these two issues. They are day and night different. The biggest difference that actually matters here, though, is that a Prophet of God has told us not to participate in games of chance. However, a prophet of God has not told us to support tort reform legislation. Any inference that one necessarily leads to another is blatant speculation and perhaps even goes so far as putting words in the prophet's mouth. Blaine,

For reasons already listed above, I cannot believe you are even comparing these two issues. They are day and night different.

The biggest difference that actually matters here, though, is that a Prophet of God has told us not to participate in games of chance. However, a prophet of God has not told us to support tort reform legislation. Any inference that one necessarily leads to another is blatant speculation and perhaps even goes so far as putting words in the prophet’s mouth.

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