My friend and colleague Kim Yuracko has an important oped in the Washington Post (coauthored with my friend and former colleague Ronen Avraham) titled "The use of race- and sex-based data to calculate damages is a stain on our legal system." They point out that personal injury damage calculations are usually based on an estimate of lost future earnings, which are typically based on tables that are broken down by race and sex. As they explain,
Certainly, forensic economists need to rely on statistical tables and data — often created by the federal government and reflecting aggregate economic realities — to estimate for a court how much money it would take to make a victim whole. But the use of race- and sex-based tables means that past levels of discrimination are embedded in predictions of the future.
Therefore,
We urge the Biden administration to support federal legislation that would bar the use of race- and sex-based data in the calculation of tort damages.
Although not addressed by Kim and Ronen, the unfairness in assessing damages has been exacerbated by statutes that place limits on so-called non-economic damages such as pain and suffering. Because pain and suffering awards are not calculated according to race and gender statistics, they are at least potentially free from the influence of past employment discrimination. Although jurors may implicitly undervalue the pain and suffering of certain population groups, that can often be overcome by a skillful attorney (who has an incentive, thanks to contingent fees, to figure out how to maximize damages).
The combination of biased employment statistics + non-economic damage caps = the worst of worlds for female and minority plaintiffs.
Of course, everyone's damages calculation should be reduced to the lowest level, right? That would be "equal" …
Or, should we ignore disparities in education and training and employment (which, to be sure, may reflect demographic inequalities, as in the pampered law professors who went to private schools and elite universities and earn excessive and often unmerited salaries) and award the guy who flips burgers at McD's the same future loss of earnings as the brain surgeon?
Of course, this discussion is, as usual, mostly based on ignorance. Loss of future earning capacity is based on the individual, not uniformly determined, as in the Marxist utopia that seems to be envisioned here. Experts may opine about loss of future income capacity using labor statistics that are applicable to the individual, not group identity.
In other words, the proposal here seems to come down to the notion that the formula for calculating damages should be decided by the junta, using its "empathy" for certain persons to favor those persons.
It's probably even more concerning than Steve Lubet reports. The discrimination inherent in the use of race/sex tables that Professors Yuracko and Avraham document is also likely to affect the jury's assessment of noneconomic damages such as pain and suffering. We know from extensive research that the economic damages operate as an anchor that influences the determination of noneconomic damages. Additionally, in a recent article in the Southern California Law Review, Jonathan Cardi, Gregory Parks, and I show how implicit bias leads to devaluation of African American plaintiffs' injuries.
The article is at this link: https://southerncalifornialawreview.com//srv/htdocs/wp-content/uploads/2020/07/Hans_Website.pdf
Huh. In calculating lost wages for a deceased male, is it OK to use the average life of males rather than the average life of all persons?