[skissane]

Yes, it is the punitive damages which are really astronomically insane. But even merely compensatory damages in the US can be extremely high by the standards of other countries.

For example, in the 2014 Florida case Cynthia Robinson v. R.J. Reynolds Tobacco Company, et al, the jury awarded US$23.6 billion in punitive damages as well as US$16.9 million in compensatory damages, for the death of the plaintiff's husband, a smoker who died from lung cancer at the age of 36. I'm sceptical any Australian judge would ever award US$16.9 million (at current exchange rates, AU$25.7 million) compensatory damages for a single person's death. The trial judge cut back the astronomical punitive damages award, but left the compensatory award intact. In the end, the plaintiff never got any of that money (the appeals court ordered a retrial, on grounds unrelated to the damages, and the defendant prevailed at the second trial). Still, I think it goes to show, it is not just high punitive damages, high compensatory damages is an issue too.

[Eisenstein]

Pointing out outliers isn't really helpful when talking about what could be expected in an insurance claim.

[skissane]

Okay, but the point also remains with respect to averages.

For example, compare how the UK and the US handle compensation for lost future earnings in wrongful death cases. In the UK, judges are guided by the "Ogden tables", actuarial tables published by the British government. The judge will use the deceased's age to look up a multiplier in the tables, which will be multiplied by their income at the time of death, to derive a net present value of future earnings. While the tables are technically only a guideline, and judges have the discretion to deviate from them, plaintiffs rarely succeed in practice with convincing judges to do so.

By contrast, in the US, there are no such formal guidelines – it is largely determined by expert witness testimony before a jury. Expert witnesses have a lot of scope to argue for higher estimates, and often succeed in convincing a jury with those arguments. The result is unsurprising – compensation for lost future earnings is more generous in the US than in the UK.

http://ndl.ethernet.edu.et/bitstream/123456789/28878/1/53.pd...

[Eisenstein]

I agree that the systems are different and one is more oriented towards payout because we have little to no social safety nets so whatever the victims get has to last them for life, among other reasons I described above.

Are you trying to say that one system is bad and another is good? They are different for different reasons, which can be explained by the structure of the society and what we expect courts to provide for us as opposed to other areas of government or private parties.

[skissane]

> I agree that the systems are different and one is more oriented towards payout because we have little to no social safety nets so whatever the victims get has to last them for life, among other reasons I described above.

The argument though is, a lot of the difference is nothing to do with the factors you cite such as social safety nets, it is about the use of juries in civil cases, especially to decide damages. David Bernstein (professor of law at George Mason University) puts the argument better than I can in a 1996 journal article – https://www.cato.org/sites/cato.org/files/serials/files/regu... – see in particular the discussion of juries on PDF pages 3 onwards, and his recommendation on PDF page 6 that state legislatures should remove the power to decide damages from juries and transfer it to judges only

[Eisenstein]

> The argument though is, a lot of the difference is nothing to do with the factors you cite such as social safety nets, it is about the use of juries in civil cases, especially to decide damages.

Why are you arguing this? For what purpose would it serve to give up the right to a jury trial in order to mitigate the extreme outlier cases which bump up the averages and which do not actually get any money into the hands of the plaintiffs? You want to destroy a constitutional right because... the tobacco industry got an unfair award, or because you think people are too dumb and swayed too easily by lawyers that we can let them decide life or death but can't let them decide how much money someone is owed?

Why take this position? What justice is it serving and why would society be better off for doing it?

[skissane]

> Why are you arguing this?

Because I'm interested in comparative law and the differences between the legal systems of different countries, and my honest opinion is this is a matter in which the US system is worse than that of the other major English-speaking countries.

I can also point to examples of the opposite, where I think the US system does it better – e.g. the abolition of the dock.

> For what purpose would it serve to give up the right to a jury trial in order to mitigate the extreme outlier cases which bump up the averages and which do not actually get any money into the hands of the plaintiffs?

Bernstein's primary argument isn't about outliers, it is about predictability and consistency – judges are much more consistent in the damages they award than juries are. Where juries are in charge of damages, it can turn into a lottery, where some successful plaintiffs win big, and others win small, just based on the luck of the jury pool draw. He argues that's unfair to those less lucky successful plaintiffs, and I think he is correct there. Of course, there can be a similar phenomena with random selection of trial judges, but the variability due to different judges tends to be significantly smaller than the variability due to different juries, since judges are subject to pressures for consistency which do not exist for juries

> You want to destroy a constitutional right because...

Under US constitutional law as it stands, there is no federal constitutional right to a jury trial for civil cases in state courts. The 7th Amendment right to jury trials in civil suits only applies federally, it has not been incorporated against the states under the 14th Amendment. This is unlike the 6th Amendment right to jury trials in criminal cases, which has been incorporated under the 14th (except for the vicinage clause). The piecemeal application of the incorporation doctrine seems rather arbitrary and difficult to rationally justify, but that's SCOTUS precedent as it stands.

Some state constitutions have a state constitutional right to civil jury trials, others don't. For those that don't, there would be no constitutional obstacle to a state legislature implementing Bernstein's proposal to remove damages decisions from juries and shift them to the judge–which is already the norm in every other major English-speaking country. As to those states who do have such a state constitutional right, whether Bernstein's proposal would be compatible with it depends on precisely how that right is worded, and how the state courts choose to interpret those words.

> you think people are too dumb and swayed too easily by lawyers that we can let them decide life or death but can't let them decide how much money someone is owed?

I'm opposed to the death penalty so I don't believe any jury should be deciding life or death.

That said, criminal matters and civil matters are so different, it is rational to hold that juries should be required for one and not the other. Criminal matters are supposed to have a very high burden of proof (beyond a reasonable doubt), where requiring 12 ordinary people to make a unanimous decision can be viewed as an additional protection against wrongful convictions. Civil matters are decided on a much weaker standard (balance of probabilities), so it is not clear whether juries are as necessary for civil cases.