Cross-posted from The Tortellini:
If you listen to tort reform debates long enough, you'll hear a common refrain about the tort system's "unpredictability" and "irrational jurors" who can't be trusted to put a dollar figure on corporate or medical wrongdoing. Sober legal minds like the University of Chicago's Cass Sunstein and patrician Common Good founder Philip Howard argue that decisions about the size of punitive or noneconomic damages ought to be made by experts, not average Americans on juries, maybe even using some sort of fixed schedule, to bring more order and predictability to the system.
This all sounds so reasonable and rational, until you read stories like those published in the Charleston Gazette last month about coal mine safety.
Veteran coal industry reporter Ken Ward Jr. is, like me, the recipient of an Alicia Patterson fellowship, and I heard him speak about his 6-month investigation into mine safety Monday at the foundation's annual luncheon in D.C.
After sharing the gruesome details of the deaths of hundreds of coal miners in his state, Ken dropped this staggering statistic: Over the past few years, the experts in the Mine Safety and Health Administration, in their rational and predictable way, fined coal companies a whopping $250 for every miner they killed by ignoring safety regulations already on the books.
Given the scandalously low number, a shocked member of the Patterson audience wanted to know if the miners' families had sued over these preventable accidents. Ken wisely noted (with a generous plug for my book!) that in West Virginia, the workers comp system makes wrongful death lawsuits extremely difficult to win and that the coal companies basically get away with murder. But hey, the system is rational and predictable! God forbid an overly emotional jury should get a shot at say, the Sago mine operators. They might think that those 12 miners' lives were worth a little more than a high three figures.