Why "experts" aren't enough

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.

Comments

[Ted]

The trackback doesn't seem to have taken (or is still waiting for approval), so let me just note that the $250 figure is bogus, as is the underlying point of the post--assuming that Mencimer cares about coal miner safety qua coal miner safety as opposed to soaking corporations for the heck of it.

http://www.pointoflaw.com/archives/003287.php

[PWN3D!!!]

Wow, you got served, Stephanie.

[Webdude]

That was a quick resort to the personal attack... even for Ted.

[Ted]

I didn't make any personal attack. I merely pointed out that Mencimer is wrong on both particulars and her larger point.

It'd be one thing if she were just making sloppy errors (like the bogus claim that Vioxx killed 100,000/year). But all of her errors point in one direction; when should one begin to suspect that they're not just random innocent mistakes?

[Webdude]

You made a personal attack. Phrasing it as a conditional statement doesn't make it any less so. (Consider a sentence commencing, "Assuming Ted cares about intellectual honesty...." The speaker of such a statement would be implying that Ted does not.)

Also, your current comment is an example of "poisoning the well" ("All of her errors point in one direction, thus we should assume that she is biased") which, whether or not the negative information presented is correct, is yet another form of personal attack.

[Ted]

My remark pointed out that if Mencimer cares about mine safety, then her point is bogus. Her point is only valid if the end goal is soaking corporations for the sake of soaking corporations. That's not personal. It's pointing out that the two policy goals are entirely separate issues, and that the latter is unrelated to the former, though the plaintiffs' bar likes to equate the two, and some gullible reporters buy the hype.

That Mencimer's errors are consistently in one direction is a fact; if I'm wrong, it's easy enough to point out a mistake she made that made her position look worse than it actually is. Your accusation of "poisoning the well" appears to be projection, given that all you've done is make cowardly anonymous comments personally attacking me for daring to point out Mencimer's errors.

[Webdude]

I simply pointed out the fact that you engaged in personal attacks. If that fact makes you uncomfortable, or you don't like it when people point out your propensity for ad hominem, your best choice would be to stop.