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Southwestern Law School

Friday, March 10, 2006

Guest Post from Andrew McClurg on Humanizing Torts

As I mentioned, Andrew McClurg offered to provide a post on this ongoing topic (thanks, Andrew!).  I plan to leave it up as the top post through the weekend, and I invite further responses, either in the comments field or via e-mail for posting.  Here is is Andrew's response:

Re: Humanizing Torts and Student Reactions to “Dead Sorrow

I want to thank Bill Childs for this opportunity to comment on the general issue of humanizing Torts for law students, as well as his students’ thoughtful comments regarding my article, Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages in the B.U. Law Review

The article tells the story of the tortiously caused death of Kody Linn Logan, my best friend and fiancé, including its impact on Kody’s survivors, and sets forth a two-part proposal to: (1) award damages for the intrinsic value of life; and (2) use such damages for the exclusive purpose of establishing a socially useful “living memorial” to the decedent.

I presented the article at the 2006 AALS Conference as part of the Tort and Compensation Systems Section panel What It Means to Compensate an Injured Person, moderated by Judge Guido Calabresi.

Humanizing Torts

As Judge Calabresi noted in his introductory remarks at AALS, it is a grand tradition among Torts professors to have fun with the interesting, sometimes wacky, fact patterns of tort cases.  I still do it (although I suffered a brief crisis of conscience about the issue after Kody’s accident).  But we shouldn’t lose sight of the fact that the cases involve real people with real, often serious and life-altering, injuries.

Interestingly, the most prominent response from attendees at my AALS presentation focused on this human element, rather than the merits (or lack thereof) of my proposal.  Several professors approached me at the conference or via email afterwards and said they intended to change the way they teach Torts to try to put a human face on it.

Bill deserves credit for “taking a chance” (as his student put it in email) in assigning my unusual article to his class.  It’s always easier and safer to stick to doctrine.  He asked me if I assigned Dead Sorrow to my own students.  No way.  It’s far too personal.  When I was writing it, I wouldn’t even let my research assistants read it.  Instead, I’d tear off the bottom of a page and say, “Go research this.”  Ironically, Bill’s experiment with my article taught me that I need to do more to humanize Torts.

But Bill has raised the question, “How do we do it?”  Here are some possibilities:

  • One way is to assign independent materials that bring the issue into focus, as Bill did with Dead Sorrow.  Some professors assign The Buffalo Creek Disaster for the same purpose.
  • Another way is to supplement the discussion of existing materials with humanizing commentary.  I use the Prosser, Wade & Schwartz casebook.  It contains Breunig v. American Family Ins. Co., about a woman with schizophrenia who suffered a psychotic episode and drove into another vehicle.  It’s impossible for students not to have fun with a case in which the plaintiff “knew she could fly because Batman does it.”  I confess that I have guilty fun with the case in class.  But afterwards, I explain to the students a little about schizophrenia—about how it’s a cruel, scary neurological disease that affects 2.7 million Americans.  I tell them that, of course, there’s nothing funny about Mrs. Breunig’s condition.  I remind them that the plaintiffs in all of our cases are real people who have suffered.  Perhaps it’s an empty excuse, but I tell them one reason we have fun with the cases is because we wouldn’t be able to deal with all the real tragedy on a day-to-day basis.
  • A picture really can be worth a thousand words.  I used to play video clips for my class from a series of “Day in the Life” films provided to me by a personal injury lawyer.  Showing film of a quadriplegic being fed and turned in his bed and a mutated child struggling with her mother’s help to put on her nightgown and say her prayers at night makes a law school classroom the quietest spot on the planet.  I’ve pondered bringing in a real tort victim with catastrophic injuries, such as a paraplegic or quadriplegic, to talk to the class about their lives, but have never known how to go about finding or approaching such a person.  Has anyone ever done that?  

Bill is doing a service to Torts professors and law students by attempting to start a dialogue on this issue.

The Student Responses to Bill’s Experiment

I wanted to briefly address the comments from Bill’s students about Dead Sorrow.  As noted, I argued in my article that wrongful death statutes should be amended to authorize the recovery of “lost life” damages (often called “hedonic damages”), which is not new.  Departing from the orthodox view, however, I suggest that such damages be devoted to the establishing a socially useful memorial to the decedent.  I argue that this approach would further both the deterrence and corrective justice models of tort law, and, specifically, that it would: (1) give official recognition to the fact that life itself has value, which the current wrongful death damages regime overlooks; (2) serve as a kind of indirect compensation to the decedent; (3) offer a “free” grief-healing mechanism for the decedent’s survivors; and (4) allocate tort damages in a way that enhances the net benefit of the tort system to society.

Responding to the student comments in order:

  • I can relate to the student who finds comfort in a simple bench created as a memorial for a murdered sorority sister fifteen years ago.  More than seven years after Kody’s death, her family and I still get solace from the animal adoption room dedicated to Kody at the Pulaski County (Ark.) Humane Society.  My article contains quite a bit of information about the grief-healing powers of memorials.
  • The observation by the “conservative Republican” student (“Who would oppose [the proposal]?”) is interesting. “Tort reform,” promoted primarily by Republicans, currently travels in only one direction: enhancing protection for tort defendants.  In Dead Sorrow, I make the point that for tort reform to have legitimacy as a national movement, attention must also be given repairing defects in the law affecting victims.
  • The concern about family and friends being unable to agree about the type of memorial is insightful.  A veteran wrongful death litigator wrote me about the same point.  He said that leaving the decision to the survivors could, in his experience, lead to terrible infighting.  One resolution would be to amend the specifics of my proposal to say that if the survivors can’t agree, the court would decide.  Alternatively, I noted that people should be able to make advance directives as to how they would like to be memorialized in the event of a tortious death.
  • The student is right that the footnotes are very sad.  They still make me sad. They are where I “hid” a large portion of human component.
  • The student is correct to be skeptical of the life valuation process.  Valuing intangible loss is always going to be speculative.  I offered the alternative of setting statutory caps for lost life damages.  As for his comment that a living memorial would not have helped him deal with his ongoing grief from the loss of his father, I regret his loss.  I don’t argue that memorials eliminate or even greatly reduce grief, but I do believe they fill greater therapeutic and spiritual needs and carry deeper restorative power than money damages awards for intangible harm from wrongful death.
  • The comment about gaining a greater appreciation of “why lawyers do what they do after deaths,” may relate to my comments about how I quickly recommended that Kody’s family hire an expert personal injury lawyer in the wake of the chaotic 14-vehicle accident in which Kody died. [Bill notes: that was indeed what they related to.]  My footnote on this point said in part: “Laypersons sometimes misconstrue the motives behind filing lawsuits so quickly in the wake of tragedy.  They don’t realize that the need to preserve evidence from calamitous events often requires immediate legal action.  Physical evidence easily gets lost or destroyed.  Witness memories fade rapidly.”
  • The comment about whether the value of the memorials would be cheapened by the sheer number of them is another interesting one. My memorial proposal excludes purely physical memorials such as statues.  It contemplates memorials such as dedicated portions of charitable, community or educational facilities, park and garden spaces, scholarships, etc. Thousands of such memorials are established each year in memory of loved ones who have died non-tortiously. As Bill’s response suggests, the memorial aspect of these contributions is probably noted first and foremost by the survivors.

Kudos to Bill’s students for their excellent insights.


(Other related posts: Wrongful Death Damages and Sorrow (1/17/06), Wrongful Death and Grief (3/7/06), Humanizing Torts (includes the students' comments) (3/9/06), More on Humanizing Torts (3/10/06.)

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HUMANIZING TORTS: A DISCUSSION ON TORTSPROF BLOG . . . Torts professor Bill Childs has a series of posts on his weblog TortsProf Blog about humanzing torts-- I've been thinking lately about the process of teaching Torts and what it [Read More]

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I don't disagree that wrongful death damages are wildly inconsistent and merit reform, and it's encouraging that McClurg recognizes the need to cap speculative intangible damages. (Minimum hedonic damages awards may create other problems and distortions. What are the appropriate level of damages where medical malpractice shortens a terminally ill patient's life by half a day?)

I do object to the claim that liability reform does no more than "enhance protection for tort defendants." One of the reasons I took a pay cut more than my father, mother, and brother make combined to work for liability reform is because I think of the tens of thousands of people who lost their jobs because of abusive asbestos litigation, the countless people who will get cancer because of sloppy mass X-ray screenings for profit, the thousands of people who will die unnecessary deaths because pharmaceutical research has been stymied by litigation lobby greed, the people who die because safety innovations are not made for fear of the liability costs that will be imposed by innovation, the auto accident victim who died while being airlifted to St. Louis because all of the neurosurgeons in southern Illinois have been chased away by plaintiffs' lawyers, the hundreds of unnecessary deaths from infant mortality because obstetricians have been driven out of practice by plaintiffs' lawyers, the people whose path out of poverty is blocked because they can't afford the extra $500 tort tax to purchase an automobile, and the small business owners whose path to success and job creation is blocked by attorneys. Among others. It would be nice if law professors asking for more compassion for plaintiffs gave any thought to these people who, even though they may not be parties to the lawsuits they talk about, are surely affected by the lack of liability reform, and are just as human. I daresay my approach is more compassionate than that of the policymaker who thinks it important that randomly selected people win jackpot awards and billions of dollars are extracted from the economy by rent seeking.

I am sorry for Andrew's loss; I would be shattered beyond repair if the woman I love died a quarter as horrifically. Still, there's no question that his proposal of mandatory memorials is Pareto-negative, and I was shocked that his paper did not even consider the value of individual choice. That some people prefer memorials do not mean that all people do; indeed, some religions forbid extravagant memorials.

I note that McClurg probably wants some sort of provision to forbid kickbacks. The natural consequence of the McClurg proposal as designed would be a cottage industry of rent-seeking memorial providers that would find it profitable to compete for memorial business by offering benefits to statutory wrongful death beneficiaries; imagine the scenario where a million dollar award is used to buy an electric yahrtzeit plaque and an annuity paid to the beneficiary, with a transactions cost to the memorial provider, working a de facto end-around of the mandatory memorial. But any regulation to prohibit "wrongful" use of hedonic damages would increase administrative costs and lead to loopholes. At the end of the day, the main beneficiary of McClurg's proposal are the lawyers.

Posted by: Ted | Mar 14, 2006 7:55:15 AM

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